Opinion
No. 4602N.
March 24, 2011.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered September 17, 2010, which denied plaintiffs motion to appoint a receiver pursuant to Real Property Law § 254 (10), unanimously affirmed, with costs.
Berliner Pilson, Great Neck (Richard J. Pilson of counsel), for appellant.
Schwartz, Lichtenberg LLP, New York (Barry E. Lichtenberg of counsel), for respondent.
Before: Mazzarelli, J.P., Saxe, Friedman, Acosta and Freedman, JJ.
Although the mortgage agreement at issue contains a provision which specifically authorizes the appointment of a receiver upon application by the mortgagee in any action to foreclose ( see Real Property Law § 254), it is well settled that "[a]n action to foreclose a mortgage is an action in equity" ( Jamaica Sav. Bank v M. S. Inv. Co., 274 NY 215, 219 [1937]). Thus, a court of equity, in its discretion and under appropriate circumstances, may deny such an application ( see Maspeth Fed. Sav. Loan Assn. v McGown, 77 AD3d 889, 889-890; Clinton Capital Corp. v One Tiffany Place Developers, 112 AD2d 911, 912; Mancuso v Kambourelis, 72 AD2d 636, 637, appeal dismissed 48 NY2d 1027; W. I. M. Corp. v Cipulo, 216 App Div 46). Based upon the circumstances presented here, we find that the motion court properly exercised its discretion in declining to appoint a receiver.