Wilmington Sav. Fund Socy. FSB v. Park

2019 NY Slip Op 986

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2019
• Docket: 8365 8364
• Status: Published

Opinion

Wilmington Sav. Fund Socy. FSB v Park (2019 NY Slip Op 00986)

Wilmington Sav. Fund Socy. FSB v Park

2019 NY Slip Op 00986

Decided on February 7, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 7, 2019
Sweeny, J.P., Tom, Webber, Kahn, Kern, JJ.

8365 8364

[*1]Wilmington Savings Fund Society FSB doing business as Christina Trust, etc., Plaintiff-Appellant-Respondent,

v

Sung R. Park also known as Sung Rae Park, et al., Defendants, East Fork Capital Equities LLC, Defendant-Respondent-Appellant.

Weber Law Group, LLP, Melville (Jaret S. Weber of counsel), for appellant-respondent.

Butler, Fitzgerald, Fiveson & McCarthy, New York (David K. Fiveson of counsel), for respondent-appellant.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered November 15, 2017, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment dismissing defendant East Fork Capital Equities LLC's counterclaim for strict foreclosure under RPAPL 1352, and denied East Fork's motion for summary judgment on that counterclaim, unanimously modified, on the law, to grant plaintiff's motion, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered June 21, 2010, which denied plaintiff's motion for renewal, unanimously dismissed, without costs, as academic.

In opposition to plaintiff's showing that a 1986 mortgage held by Dime Savings Bank was satisfied, and therefore that plaintiff's mortgage was a "first mortgage" under RPL § 339-z(ii), East Fork failed to show that the mortgage was unpaid when the common charge lien was filed in 2014 (see Board. of Mgrs. of Parkchester N. Condominium v Richardson , 238 AD2d 282, 284 [1st Dept 1997]).

We have considered East Fork's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 7, 2019

CLERK