Salesian Society, Inc. v. Nutmeg Partners Ltd.

256 A.D.2d 455, 683 N.Y.S.2d 435, 1998 N.Y. App. Div. LEXIS 13508

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1998
• Status: Published

Opinion

—In an action, inter alia, to declare mortgages held on certain property to be void pursuant to Real Property Law § 450, the defendant David Cohen appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated October 31, 1997, as granted the plaintiff’s motion for partial summary judgment as to him.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion for partial summary judgment is denied as to the appellant David Cohen.

The Supreme Court improperly granted the plaintiff’s motion for partial summary judgment insofar as it declared that the plaintiff’s property was exempt from the defendant David Cohen’s mortgage lien on the ground that it was land used for cemetery purposes pursuant to Real Property Law § 450. Questions of fact remain, including whether the plaintiff’s property was being used for cemetery purposes at the time that the defendant David Cohen acquired his mortgage interest (see, Matter of City of New York [Jerome Ave.], 192 NY 459).

We note that the defendant David Cohen’s mortgage covers only a 5.8-acre parcel of the 10 acres in issue. Rosenblatt, J. P., Copertino, Thompson and Joy, JJ., concur.