Farmingdale Realty Trust v. Real Properties MLP Ltd. Partnership

• Decision Date: 18 March 1996
• Citation: 225 A.D.2d 656,640 N.Y.S.2d 566
• Parties: FARMINGDALE REALTY TRUST, Appellant-Respondent, v. REAL PROPERTIES MLP LIMITED PARTNERSHIP, et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 566

640 N.Y.S.2d 566

225 A.D.2d 656

FARMINGDALE REALTY TRUST, Appellant-Respondent, v. REAL PROPERTIES MLP LIMITED PARTNERSHIP, et al Respondents-Appellants.

Supreme Court, Appellate Division Second Department.

March 18, 1996.

Michael Cook, New York City, for appellant-respondent.

Patterson, Belknap, Webb & Tyler L.L.P., New York City (Lisa E. Cleary, of counsel), for respondents-appellants.

Before ROSENBLATT, J.P., and MILLER, RITTER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a judgment declaring that two mortgages held by the defendants were satisfied by the plaintiff's payment into court of $372,671.48, and to compel the defendants pursuant to RPAPL 1921 to deliver satisfaction pieces for the subject mortgages, the plaintiff appeals from so much of (1) an order and judgment (one paper) of the Supreme Court, Nassau County (McCarty, J.), entered May 31, 1994, as, upon denying the plaintiff's motion for summary judgment and granting the branches of the defendants' cross motion which were for summary judgment on their counterclaims, is in favor of the defendants and against it dismissing the complaint and awarding the defendants the principal sum of $372,671.48, and (2) an order of the same court, entered January 19, 1995, as denied its motion, which was in effect for reargument, and the defendants cross-appeal from so much of the order and judgment entered May 31, 1994, as, upon denying that branch of their cross motion which was for attorneys' fees and costs, failed to award them attorneys' fees and costs.

ORDERED that the appeal from the order entered January 19, 1995, is dismissed; and it is further,

ORDERED that the order and judgment entered May 31, 1994, is modified, on the law, by adding thereto a provision declaring that the mortgages held by the defendants were not satisfied by the plaintiff's payment into court of the sum of $372,671.48; as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from; and it is further,

ORDERED that the defendants are awarded one bill of costs.

The plaintiff's motion, characterized as one to vacate the judgment based on newly discovered evidence, was not based upon new facts which were unavailable at the time of the original motion and was therefore actually a motion to reargue, the denial of which is not appealable (see, e.g., Mgrditchian v. Donato, 141 A.D.2d 513, 529 N.Y.S.2d 134; Matter of Bosco, 141 A.D.2d 639, 529 N.Y.S.2d 541; Matter of Kadish v. Colombo, 121 A.D.2d 722, 504 N.Y.S.2d 149).

The Supreme Court correctly concluded that the plaintiff never tendered the amount due for principal and interest on the mortgages (see, Bank of N.Y. v. Midland Ave. Dev., 193 A.D.2d 641, 642, 597 N.Y.S.2d 458; Jamaica Sav. Bank v. Sutton, 42 A.D.2d 856, 346 N.Y.S.2d 847; 1 Bergman, NY Mortgage Foreclosures § 4.08). The plaintiff's contention that tender was excused because the mortgagee was unable to perform is not supported by the record. While approval of the California court was required...