State Savings, F.A. v. Parc Vendome Associates

223 A.D.2d 464, 637 N.Y.S.2d 365, 1996 N.Y. App. Div. LEXIS 468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1996
• Status: Published

Opinion

Order, Supreme Court, New York County (Lewis Friedman, J.), entered October 5, 1994, which denied the motion of substituted plaintiff, MBR Holdings Associates, for leave to add seven condominium units to the foreclosure action, and order of the same court and Justice entered on or about March 7, 1995, which, insofar as appealable, denied MBR Holdings’ motion to renew, unanimously affirmed, without costs.

The motion court properly denied assignee MBR Holdings Associates’ motion for leave to add seven condominium units to the foreclosure action instituted by its assignor, State Savings. The State Savings complaint in this foreclosure action specifically named only five condominium units and indicated repayment of some of the mortgage loan. We adhere to the view, previously expressed by this Court, "that the failure to proceed against all the security is an abandonment of the lien on the portion omitted” (Bodner v Brickner, 29 AD2d 441, 446). There is no indication, contrary to the claim advanced on appeal, that plaintiff’s predecessor was fraudulently induced to omit these seven units from the original foreclosure proceeding. Moreover, we take judicial notice of the fact that the foreclosure proceeding has now terminated with the judgment of foreclosure and actual sale of the premises pursuant thereto (see, Dulberg v Ebenhart, 68 AD2d 323, 327).

We have considered appellant’s other contentions and find them to be without merit. Concur—Sullivan, J. P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.