Opinion
February 22, 1973
Order, Supreme Court, Bronx County entered on January 22, 1971, unanimously reversed, on the law, plaintiff-respondent's motion for summary judgment against defendant-appellant denied, and defendant-appellant's motion for summary judgment dismissing the complaint granted. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The suit is for the proceeds of a policy of fire insurance covering defendant corporation's premises, on which plaintiff holds the mortgage. The original mortgage loan had been made to defendant's predecessor in title under a contract providing that there was to be fire insurance for plaintiff's benefit; on acquisition of the property, defendant insured the premises but, there being no such contractual requirement as to it, did not provide that the insurance was to be for the mortgagee's benefit. In granting summary judgment for plaintiff, Special Term relied on a so-called mortgage transfer card in plaintiff's possession, executed by defendant's officer, which, however, did no more than acknowledge defendant's assumption of the mortgage debt. Nor does the statute cited by Special Term (Real Property Law, § 254, subd. 4) for preservation of "an equitable lien" in plaintiff's favor afford it any comfort; it was adopted (L. 1965 ch. 830) for the purpose of overcoming the holding of Savarese v. Ohio Farmers Ins. Co. ( 260 N.Y. 45), having to do with disposition of fire insurance proceeds where the owner has made repairs. A contract of the type sought to be enforced against this defendant as successor in ownership is personal, and does not run with the land. (See, in this connection, Mortgages and Deeds of Trust, 38 N Y Jur., § 137, p. 262; § 139, p. 268; Sheehan v. Spring Val. Wood Prods. Corp., 194 App. Div. 119.) This disposition, of course, is without prejudice to whatever other remedies plaintiff may have available.
Concur — Stevens, P.J., Markewich, Kupferman and Capozzoli, JJ.