FGB Realty Advisors, Inc. v. Parisi

265 A.D.2d 297, 696 N.Y.S.2d 207, 1999 N.Y. App. Div. LEXIS 9635

Opinion

—In an action to foreclose a mortgage, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Winslow, J.), dated June 10, 1998, which denied its motion, inter alia, to vacate an order of the same court dated December 26, 1997, granting the motion of the defendants Thomas Parisi and Chong Parisi to dismiss the complaint insofar as asserted against them upon its default in opposing the motion, and (2), as limited by its brief, from so much of an order of the same court, dated October 28, 1998, as, upon reargument, adhered to the prior determination.

Ordered that the appeal from the order dated June 10, 1998, is dismissed, as that order was superseded by the order dated October 28, 1998, made upon reargument; and it is further,

Ordered that the order dated October 28, 1998, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

A mortgage is merely security for a debt or other obligation and cannot exist independently of the debt or obligation (see, Copp v Sands Point Marina, 17 NY2d 291, 292). Here, the motion to dismiss the complaint was properly granted since the debt which the mortgage secured concededly was satisfied prior to the commencement of the action.

The appellant’s remaining contentions are without merit. Bracken, J. P., Sullivan, Goldstein and McGinity, JJ., concur.