Opinion
2003-03114, 2003-07674.
Decided June 14, 2004.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of (1) an order of the Supreme Court, Nassau County (Segal, J.), dated March 3, 2003, as granted the cross motion of the defendant Daniel Perla Associates, LP, to direct the plaintiff to assign the subject mortgage to it upon payment of the amount due on the mortgage, and as denied that branch of its motion which was to permit it to collect rents on the subject property, and (2) an order of the same court entered August 5, 2003, as denied its motion to voluntarily discontinue the action pursuant to CPLR 3217(b).
Bondi Iovino, Mineola, N.Y. (Anthony F. Iovino and Michele F. Mandell of counsel), for appellant.
Dollinger, Gonski Grossman, Carle Place, N.Y. (Matthew Dollinger, Floyd G. Grossman, and Mindy Wallach of counsel), for respondent George Voutsinas.
Cooperman Lester Miller, LLP, Manhasset, N.Y. (Eric H. Gruber of counsel), for respondent Daniel Perla Associates, LP.
Before: NANCY E. SMITH, J.P., HOWARD MILLER, SONDRA MILLER, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs to the respondents.
The Supreme Court providently exercised its discretion in granting the motion of the defendant Daniel Perla Associates, LP, to direct the plaintiff to assign the subject mortgage to it upon payment of the amount due on the mortgage. Where, as here, "the owner of a senior mortgage is seeking to enforce collection by foreclosure, the holder of a junior mortgage is entitled to redeem and to be subrogated to the rights of the senior mortgage, and may, upon tender of the amount due, with interest and costs, compel an assignment of the mortgage" (78 N.Y. Jur 2d, Mortgages § 360; see Twombly v. Cassidy, 82 N.Y. 155; Matter of Ryan, 216 App. Div 619).
The Supreme Court also providently exercised its discretion in denying the plaintiff's subsequent motion to voluntarily discontinue the action ( see Tucker v. Tucker, 55 N.Y.2d 378, 383). The record supports the finding that the plaintiff was merely attempting to circumvent the order directing it to assign the subject mortgage ( see Aison v. Hudson Riv. Black Riv. Regulating Dist., 279 A.D.2d 754, 755).
The plaintiff's remaining contention is without merit.
SMITH, J.P., H. MILLER, S. MILLER and LUCIANO, JJ., concur.