107 Shore Road Corp. v. Gatknick Realty Corp.
| Decision Date | 17 September 1963 |
| Parties | 107 SHORE ROAD CORP., Plaintiff, v. GATKNICK REALTY CORP., I. Richard Smith, Children's Hour Inc., Fred Durr and Fedur Enterprises, Inc. and 'John Doe', persons on and in the premises, Defendants. |
| Court | New York Supreme Court |
Floyd M. Lampert, New York City, for plaintiff.
Morris Alfred Vogel, Long Beach, for Gatknick, Durr and Fedur.
In this action for trespass, plaintiff has applied for a temporary injunction enjoining and restraining the defendants from continuing to occupy the property and from performing allegedly continuous acts of waste and damage. The mortgagee insists that Under Section 13 of the mortgage, it has the right to enter the premises for the purpose of letting the same, regardless of the facts that there was no prior rental in effect, that there was no tenant on the premises and that the premises were vacant at the time that it acted. Under the said Section, the mortgagor assigned to the mortgagee the rents, issues and profits of the premises and as further security for the payment of the underlying indebtedness, granted to the mortgagee 'the right to enter upon the premises for the purpose of collecting the same and to let the premises or any part thereof.'
The right to enter and to let the premises is for the declared purpose of affording further security to the mortgagee. It should not be construed as giving the mortgagee complete control over the property. The cases cited by the mortgagee do not require a different conclusion. In each of them, the mortgagee was given the right, not only to enter upon the premises, but in addition, to take possession. Significantly here, there is no right to take possession; simply, a right to enter to collect and to lease. The right to lease conferred by the mortgage must be read in context. Since there is nothing in the mortgage to indicate that it was the intention of the parties that immediately on default the mortgagee would be entitled to full dominion over the property, the contractual right to lease must be confined to the situation confronting the mortgagee at the time of default. If there were existing tenancies and a violation by a tenant of the terms thereof, the mortgagee conceivably would have the right to re-let, at least for the unexpired term. Any exercise of control beyond that could seriously prejudice the rights of the fee owner. It would permit a mortgagee...
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Ganbaum v. Rockwood Realty Corp.
...a mortgage is merely a lien and cannot operate as a transfer of title. Support for this view is found in 107 Shore Road Corp. v. Gatknick Realty Corp., 40 Misc.2d 455, 243 N.Y.S.2d 447. In that case, it was held that an assignment of rents clause in a mortgage which by its language gave the......
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In re 47-78 Douglass Street, LLC v. 47-78 Douglass Street, LLC, Case No. 09-10216 (AJG)
...interest because it held legal title to the Property and a foreclosure sale had not taken place. Accord Shore Road Corp. v. Gatknick Realty Corp., 40 Misc.2d 455, 456 (1963) (describing assignment of rents and right to enter clauses as limited rights to possession because they were conditio......