Opinion
2016–09073 Index No. 710949/15
05-08-2019
PHOENIX GRANTOR TRUST, Appellant, v. EXCLUSIVE HOSPITALITY, LLC, et al., Respondents, et al., defendants.
Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Mark A. Slama of counsel), for appellant. Cordova & Schwartzman, LLP, Garden City, N.Y. (Jonathan B. Schwartzman and Debra L. Cordova of counsel), for respondents.
Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Mark A. Slama of counsel), for appellant.
Cordova & Schwartzman, LLP, Garden City, N.Y. (Jonathan B. Schwartzman and Debra L. Cordova of counsel), for respondents.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDERIn an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), entered August 12, 2016. The order denied the plaintiff's motion for the appointment of a receiver for the subject real property.
ORDERED that the order is affirmed, with costs.
Following the commencement of this foreclosure action, the plaintiff moved for the appointment of a receiver to manage the subject real property and to operate the hotel located on the premises. The motion was opposed by the defendant mortgagor, which is a company that currently operates the hotel, and three defendant guarantors of the mortgage debt. The Supreme Court denied the plaintiff's motion, and the plaintiff appeals.
Although the relevant mortgage consolidation agreement provides that the mortgagee may apply for the appointment of a receiver in the event of a default by the borrower (see Real Property Law § 254[10] ), the Supreme Court did not improvidently exercise its discretion in denying the plaintiff's motion given the substantial issues of fact that have been raised in this case, including those regarding the validity of the underlying note and whether a default has in fact occurred (cf. Clinton Capital Corp. v. One Tiffany Place Developers, 112 A.D.2d 911, 912, 492 N.Y.S.2d 427 ).The plaintiff's alternative request for relief was not raised in the Supreme Court and, thus, is not properly before this Court (see Emigrant Mtge. Co., Inc. v. Persad, 117 A.D.3d 676, 678, 985 N.Y.S.2d 608 ).
MASTRO, J.P., ROMAN, HINDS–RADIX and MALTESE, JJ., concur.