RTC Mortgage Trust 1995-S/N1 v. R&C General Contractors Corp.

38 A.D.3d 639, 835 N.Y.S.2d 581

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 2007
• Status: Published

Opinion

In an action to foreclose a mortgage on real property, the nonparty receiver, B. Mitchell Alter, appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated July 15, 2005, which granted the motion of the defendants R&C General Contractors Corp., Carmine Gar gano, and Rose Gargano to resettle and modify a prior resettled order of the same court dated May 1, 2003.

Ordered that the order is reversed, on the law, with costs, and the motion to resettle and modify the prior resettled order is denied.

Once the plaintiff’s motion for a deficiency judgment was denied (see RTC Mtge. Trust 1995-S/N1 v R&C Gen. Contrs. Corp., 299 AD2d 469 [2002]), the respondents no longer had any interest in the amount of funds remaining in the receiver’s account (see RPAPL 1371 [3]). Since the respondents had no “legally cognizable interest,” they had no standing to bring the underlying motion (see Matter of Glengariff Health Care Ctr. v New York State Dept. of Health, 205 AD2d 626, 627 [1994]).

We note that, as the proceeds from the foreclosure sale were insufficient to pay off the mortgage debt, there was no “surplus” for the purposes of RPAPL 1361 (see Bank of N.Y. v Goodfriend, 247 AD2d 420 [1998]; Evergreen Bank v D & P Justin’s, Inc., 152 AD2d 898, 899 [1989]). Accordingly, there was no money for the receiver to pay into court (see RPAPL 1354 [4]), and no reason for a hearing to be held to determine the “disposition of surplus money” (RPAPL 1361 [3]). Mastro, J.P., Krausman, Florio and Balkin, JJ., concur.