Village of Highland Falls v. Kuperman

71 A.D.2d 1002, 420 N.Y.S.2d 293, 1979 N.Y. App. Div. LEXIS 13329

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 1979
• Status: Published

Opinion

—In a condemnation proceeding, defendants Herman Kuperman, Melvin D. Cohen and Solomon Kuperman and the plaintiff separately appeal from so much of an order of the Supreme Court, entered in Orange County on July 24, 1978, as granted the motion of mortgagee Marine Midland Bank, inter alia, to "vacat[e] the final order in condemnation” to the extent of (1) vacating the final order in condemnation, (2) vacating the deed given by defendants to the plaintiff pursuant to the order of condemnation, and (3) directing defendants to return the sum of $54,435 to plaintiff. Order reversed insofar as appealed from, on the law, without costs or disbursements, and motion of Marine Midland Bank denied. On the court’s own motion, Jerome Trachtenberg, as executor of Robert Rodway, is substituted as a defendant herein. In our opinion the village’s failure to make Marine Midland Bank a party to the condemnation proceeding did not invalidate the proceeding against the fee owners, who were made parties (see Matter of Holman [Warren County], 268 App Div 330). The order appealed from violated the principles set forth in Holman (supra). What, if any, alternative remedies are available to Marine Midland is not before us (see Matter of Holman [Warren County], supra, p 332). We have found no merit, however, to the claim of defendants-appellants that the mortgagee, by its conduct, was estopped from moving against the final order. Shapiro, J. P., Cohalan, Margett and Martuscello, JJ., concur.