McArdle v. McGregor

• Citation: 688 N.Y.S.2d 919
• Parties: 1999 N.Y. Slip Op. 4859 Kevin J. McARDLE, respondent, v. Christopher S. McGREGOR, et al., appellants, et al., defendants.
• Decision Date: 24 May 1999
• Court: New York Supreme Court — Appellate Division

Page 919

688 N.Y.S.2d 919

1999 N.Y. Slip Op. 4859

Kevin J. McARDLE, respondent, v. Christopher S. McGREGOR, et al., appellants, et al., defendants.

Supreme Court, Appellate Division,

Second Department, New York.

May 24, 1999.

Christopher S. McGregor, Kingston, N.Y., appellant pro se.

In an action to foreclose a mortgage, the defendants Christopher S. McGregor and Lorin McGregor appeal from an order of the Supreme Court, Orange County (Owen, J.), dated September 9, 1997, which, inter alia, granted the plaintiff's motion for summary judgment on the complaint. The appeal brings up for review so much of an order of the same court, dated November 7, 1997, as, upon reargument, adhered to the original determination (see, CPLR 5517[b] ).

ORDERED that the appeal by Lorin McGregor is dismissed, without costs or disbursements, for failure to perfect the appeal in accordance with the rules of this court (see, 22 NYCRR 670.8[e] ); and it is further,

ORDERED that the appeal by Christopher S. McGregor from the order dated September 9, 1997, is dismissed, without costs or disbursements, as that order was superseded by the order dated November 7, 1997, made upon reargument; and it is further,

ORDERED that the order dated November 7, 1997, is affirmed insofar as reviewed, without costs or disbursements.

In Carman v. European Am. Bank & Trust Co., 78 N.Y.2d 1066, 1067, 576 N.Y.S.2d 90, 581 N.E.2d 1345, the Court of Appeals stated, "It is elementary * * * that liens and other similar secured interests ordinarily survive bankruptcy (e.g., Farrey v. Sanderfoot, 500 U.S. 291, 111 S.Ct. 1825, 114 L.Ed.2d 337; Long v. Bullard, 117 U.S. 617, 6 S.Ct. 917, 29 L.Ed. 1004; Matter of Tarnow, 749 F.2d 464, 465-466). Moreover, a creditor need not object to the bankrupt's discharge in order to preserve its lien, since the discharge does not affect the lien". In light of this principle, the arguments advanced by Christopher S. McGregor are clearly without merit (see also, Johnson v. Home State Bank, 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66; Estate of Lellock v. Prudential Ins. Co. of Am., 811 F.2d 186, 189; Bank of N.Y. v. Magri, 226 A.D.2d 412, 641 N.Y.S.2d 68; Matter of Leonard v. Brescia Lbr. Corp., 174 A.D.2d 621, 571 N.Y.S.2d 322).

BRACKEN, J.P., THOMPSON, ALTMAN and KRAUSMAN, JJ., concur.