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Dumser v. GSL Enterprises, Inc.

Appellate Division of the Supreme Court of New York, First Department
Mar 26, 1991
171 A.D.2d 583 (N.Y. App. Div. 1991)

Opinion

March 26, 1991

Appeal from the Supreme Court, New York County (Stanley Parness, J.).


Plaintiffs' decedent sold two buildings to defendant in July, 1984. The decedent took back a purchase money mortgage on each property. After defendant defaulted on the mortgage payments, plaintiffs instituted this mortgage foreclosure action. Defendant's amended answer alleges counterclaims seeking damages for fraud based on misrepresentation by the decedent in the contracts of sale that the listed rents for the units did not exceed the maximum legal amount. Plaintiffs moved for summary judgment, and defendant cross-moved to stay of enforcement of any foreclosure judgment and sale pending determination of its counterclaims. The IAS court granted summary judgment in favor of plaintiffs, but also granted defendant's cross-motion on condition that defendant deposit all past due installment payments with the court and make future installment payments on their due dates to the court. Such payments have been paid by defendant.

Thereafter, defendant received notification that the rent in "another apartment" in one of the two buildings it bought from the decedent exceeded the maximum legal rent. Accordingly, to avoid any statute of limitations problems, instead of seeking permission to amend its pleadings, defendant started a separate action and moved to consolidate, which was granted with plaintiffs' consent. Plaintiffs then moved to vacate the stay of enforcement of the order granting summary judgment in the foreclosure action. The IAS court denied the motion.

While plaintiffs assert that the IAS court abused its discretion, we disagree. As the record reveals, there is "some articulable reason for concluding that the failure to impose conditions [on the judgment] might result in some prejudice, financial or otherwise" to defendant. (Stigwood Organisation v Devon Co., 44 N.Y.2d 922, 923.) Even though the last counterclaim was sufficiently independent to be pleaded in a separate action (supra) it is clearly directly related to the other counterclaims and there is insufficient evidence in the record to determine whether the assets of plaintiffs are sufficient to satisfy successful counterclaims of defendant. Indeed, plaintiffs have not posted any security to warrant a vacatur of the instant stay. (See, Bankers Trust v Renting Off., 91 A.D.2d 1140, 1141.)

Concur — Murphy, P.J., Sullivan, Carro, Wallach and Kupferman, JJ.


Summaries of

Dumser v. GSL Enterprises, Inc.

Appellate Division of the Supreme Court of New York, First Department
Mar 26, 1991
171 A.D.2d 583 (N.Y. App. Div. 1991)
Case details for

Dumser v. GSL Enterprises, Inc.

Case Details

Full title:ROBERT W. DUMSER et al., as Preliminary Executors of PAMELA COLE…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 26, 1991

Citations

171 A.D.2d 583 (N.Y. App. Div. 1991)
567 N.Y.S.2d 452