Opinion
July 12, 1996
Appeal from the Supreme Court, Herkimer County, Tenney, J.
Present — Green, J.P., Lawton, Fallon, Doerr and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: Because the amount of the judgment of foreclosure and sale exceeds the amount paid for the property upon the sale, plaintiff is entitled to the proceeds remaining in the receiver's account ( see, RPAPL 1371; Albany Sav. Bank v. Greller Assocs. [appeal No. 2], 178 A.D.2d 953, 954, lv denied 79 N.Y.2d 757; Albany Sav. Bank v. Thum Realty, 97 A.D.2d 891; Dime Sav. Bank v. Anshel Realty Corp., 58 A.D.2d 881, 882). Defendants argue that the fair market value of the property exceeds the amount plaintiff paid for the property at the foreclosure sale and that plaintiff will receive a windfall if RPAPL 1371 (4) is applied literally. The language of RPAPL 1371 (4) is clear and unambiguous, however, and "[a]ny relief required to prevent a recurrence of this situation must come through a legislative amendment to" that subdivision ( Dime Sav. Bank v. Anshel Realty Corp., supra, at 882; cf., Hudson City Sav. Inst. v. Drazen, 153 A.D.2d 91).