UMB Bank and Trust Co. v. S.H.M. West Parking Corp.

• Decision Date: 24 March 1992
• Parties: UMB BANK AND TRUST COMPANY, Plaintiff-Respondent, v. S.H.M. WEST PARKING CORP., Defendant-Appellant, and DeFilippis/Realty Fund Joint Venture, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 324

581 N.Y.S.2d 324

181 A.D.2d 577

UMB BANK AND TRUST COMPANY, Plaintiff-Respondent, v. S.H.M. WEST PARKING CORP., Defendant-Appellant, and DeFilippis/Realty Fund Joint Venture, et al., Defendants.

Supreme Court, Appellate Division,

First Department.

March 24, 1992.

Before MILONAS, J.P., and ROSENBERGER, KUPFERMAN, ROSS and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered April 5, 1991, which, to the extent appealed from, granted plaintiff's motion for summary judgment and denied defendant-appellant's cross-motion for summary judgment, unanimously affirmed, without costs.

Since three of the four consolidated mortgages were recorded before the month-to-month occupancy agreement between appellant and the other defendants, those three mortgages are superior in lien to the occupancy agreement (Dominion Fin. Corp. v. 275 Washington St. Corp., 64 Misc.2d 1044, 1046, 316 N.Y.S.2d 803) making the foreclosure effective to terminate appellant's leasehold rights (United States v. Bedford Assocs., 491 F.Supp. 851, 866, affd. in part and revd. in part on other grounds, 2nd Cir., 657 F.2d 1300, cert. denied 456 U.S. 914, 102 S.Ct. 1767, 72 L.Ed.2d 173). Plaintiff's exercise of its right under the consolidation agreement to take an assignment of future rents did not create a landlord-tenant relationship between it and appellant (see, Poughkeepsie Sav. Bank v. R & G Sloane Mfg. Co., 84 A.D.2d 212, 215, 445 N.Y.S.2d 560).