Opinion
2012-06-28
CSFB 2004–C3 BRONX APTS LLC, Plaintiff–Appellant–Respondent, v. SINCKLER, INC., Defendant–Respondent–Appellant, Baron Associates LLC, et al., Defendants.
K & L Gates LLP, New York (Eli R. Mattioli of counsel), for appellant-respondent. Law Office of Paul R. Kenney, LLC, New York (Jill B. Savedoff of counsel), for respondent-appellant.
K & L Gates LLP, New York (Eli R. Mattioli of counsel), for appellant-respondent. Law Office of Paul R. Kenney, LLC, New York (Jill B. Savedoff of counsel), for respondent-appellant.
SAXE, J.P., FRIEDMAN, RENWICK, DeGRASSE, RICHTER, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about February 16, 2012, which, insofar as appealed from, denied plaintiff's motion for summary judgment foreclosing a commercial mortgage and dismissing defendant Sinckler, Inc.'s defenses and affirmative defenses, granted the part of Sinckler's motion that sought to vacate a prior order appointing a receiver and denied the part that sought summary judgment dismissing the complaint on the ground of standing, unanimously modified, on the law, to grant plaintiff's motion, and to deny the part of Sinckler's motion that sought to vacate the order appointing a receiver, and otherwise affirmed, without costs.
The record establishes that plaintiff was validly assigned the note and mortgage that is the subject of this foreclosure action ( see Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 280–281, 926 N.Y.S.2d 532 [2011] ). Although Sinckler asserted a number of defenses and affirmative defenses, its entire argument is premised upon the contention that plaintiff lacks standing to bring this action because the assignment was invalid. Thus, since this argument lacks merit, plaintiff should have been granted summary judgment on its foreclosure claim. We note that Sinckler admits in its papers on appeal that if plaintiff has standing, then there are no triable issues of fact.
The mortgage agreement provides for the appointment of a receiver, in an action to foreclose the mortgage, “as a matter of strict right and without notice to Mortgagor and without regard to the adequacy of the Property for the repayment of the indebtedness secured hereby.” Thus, plaintiff was entitled, “without notice and without regard to adequacy of any security of the debt, to the appointment of a receiver of the rents and profits of the premises covered by the mortgage” (Real Property Law § 254[10]; see Naar v. Litwak & Co., 260 A.D.2d 613, 688 N.Y.S.2d 698 [1999] ). Under the circumstances, vacatur of the order appointing the receiver was not warranted ( see Naar, 260 A.D.2d at 614–615, 688 N.Y.S.2d 698).