STOCKER, KEVIN T. v. 2900 TRANSIT ROAD LLC

82 A.D.3d 1682, 919 N.Y.2d 683, 919 N.Y.S.2d 683

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 2011
• Docket: CA 10-01581
• Status: Published

Opinion

Defendant corporation was formed for the purpose of “acquiring, developing, operating, leasing and otherwise dealing in real estate, specifically 6024 Main Street, Williamsville, New York.” Defendant executed a mortgage with respect to that property, which was subsequently acquired by plaintiff, a member of defendant. Elaintiff commenced the instant mortgage foreclosure action when defendant defaulted on the mortgage and, following the foreclosure sale, surplus funds were deposited with the Erie County Comptroller (Comptroller) by agreement of the parties. Elaintiff thereafter moved, inter alia, for an order dissolving defendant corporation and directing the Comptroller to distribute the surplus funds pursuant to defendant’s Operating Agreement.

As limited by its brief, defendant corporation contends that Supreme Court erred in granting that part of plaintiffs motion seeking an order directing the Comptroller to distribute the surplus funds to the members of defendant corporation in proportion to their membership interests. We agree. The surplus funds resulting from the foreclosure sale belong to defendant corporation (see First Fed. Sav. & Loan Assn. of Rochester v Brown, 78 AD2d 119, 123 [1980], appeals dismissed 53 NY2d 939 [1980]). Present — Centra, J.P., Garni, Green and Gorski, JJ.