Opinion
February 26, 1996
Appeal from the Supreme Court, Queens County (Price, J.).
Ordered that the appeal from the order dated April 18, 1995 is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated December 6, 1994, is affirmed; and it is further,
Ordered that the respondents Austin Mall Associates, Austin Mall Corp., and JSM Management Corp., are awarded one bill of costs.
The plaintiff commenced this action to foreclose upon a mortgage it holds on certain commercial property (a shopping mall) in Queens. After issue was joined, the plaintiff moved for summary judgment. The named defendants, Austin Mall Associates, Austin Mall Corporation, and JSM Management Corp., opposed the motion as premature on the ground that the tenants of the subject property had not been joined. The Supreme Court agreed and denied the plaintiff's motion with leave to renew after joinder of the tenants. We now affirm.
The tenants of the subject property, whose leases are claimed to be subject and subordinate to the plaintiff's mortgage, are necessary parties to a foreclosure action pursuant to RPAPL 1311 (1) and must be joined by the plaintiff (see, Flushing Sav. Bank v. CCN Realty Corp., 73 A.D.2d 945; Seely's Son v. Fulton-Edison, Inc., 52 A.D.2d 575; National Bank v. Gloucester Equities, 82 Misc.2d 811; cf., Dime Sav. Bank v. Johneas, 172 A.D.2d 1082; Polish Natl. Alliance v. White Eagle Hall Co., 98 A.D.2d 400 ; C.G. Swackhamer, Inc. v. P.F.L. Constr. Corp., 285 App. Div. 841). Accordingly, the Supreme Court did not err in denying the plaintiff's motion as premature. Balletta, J.P., Ritter, Altman and Hart, JJ., concur.