Opinion
No. 2008-07560.
January 26, 2010.
In an action to foreclose a mortgage, the defendant New York City Department of Housing Preservation appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated May 1, 2008, as granted, in part, that branch of the motion of nonparty Citimortgage, Inc., which was for an award of an attorney's fee to be paid from the subject surplus funds.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Scott Shorr of counsel), for appellant.
Sweeney, Gallo, Reich Bolz, LLP, Rego Park, N.Y. (Rosemarie A. Klie of counsel), for nonparty-respondent.
Before: Prudenti, P.J., Mastro, Florio and Austin, JJ., concur.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of nonparty Citimortgage, Inc., which was for an award of an attorney's fee to be paid from the subject surplus funds is denied.
There is no authority for the allowance of an attorney's fee from the surplus funds in an action to foreclose a mortgage ( see Reilly v Empire State Improvement Corp., 251 NY 351, 353 [1929]; Realty Assoc. Sec. Corp. v Jaybar Realty Corp., 257 App Div 1001, 1001, affd 282 NY 603; Sadow v Poskin Realty Corp., 63 Misc 2d 499, 508-509). Thus, the Supreme Court was without authority to award $3,000 from the surplus funds to Sweeney, Gallo, Reich Bolz, LLP, attorneys for the nonparty claimant Citimortgage, Inc., as an attorney's fee.
The parties' remaining contentions either are without merit or need not be reached in light of our determination.