Continental Insurance Co. v. Karlan

2 Citing cases

  1. Travelers Ins. Co. v. 633 Third Assoc.

    816 F. Supp. 197 (S.D.N.Y. 1993)   Cited 1 times

    In United States v. Miller, 400 F. Supp. 1080, 1084 (S.D.N Y 1975), construing New York law, Judge Carter said, "[i]t appears that an action for waste does not lie against a mortgagee which is not in possession of the premises . . ." Judge Carter cited for that proposition Continental Insurance Co. v. Karlan, 42 A.D.2d 842, 346 N.Y.S.2d 832, 833 (2d Dept. 1973) ("In the absence of an allegation that appellants (holders of the mortgage) were in possession of the premises (either actually or constructively), it would seem clear that no action for waste would be maintainable against them.") These were actions in tort for damages occasioned by waste.

  2. United States v. Miller

    400 F. Supp. 1080 (S.D.N.Y. 1975)   Cited 9 times
    In United States v. Miller, 400 F. Supp. 1080, 1084 (S.D.N Y 1975), construing New York law, Judge Carter said, "[i]t appears that an action for waste does not lie against a mortgagee which is not in possession of the premises..."

    Second, it appears that an action for waste does not lie against a mortgagee which is not in possession of the premises such as the United States in this case. Continental Insurance Co. v. Karlan, 42 A.D.2d 842, 346 N.Y.S.2d 832 (2d Dept. 1973). This is so even if the mortgagee's employees or other agents are on the premises, as in the Karlan case. It therefore appears that under New York law, Stoutenberg has no right of action for or defense of waste against the United States. Stoutenberg was aware of the mortgage held by the United States. If, at any time, he was concerned about deterioration of the property, his remedy was to cause an execution to be issued pursuant to C.P.L.R. ยง 5230(b) directing that the property be sold and that his judgment be satisfied from the proceeds.