Franklin Credit Mgt. Index Corp. v. Theresa Striano Revocable Trust , 152 A.D.3d 428 ( 2017 )

Franklin Credit Mgt. Index Corp. v Theresa Striano Revocable Trust (2017 NY Slip Op 05575)

Franklin Credit Mgt. Index Corp. v Theresa Striano Revocable Trust

2017 NY Slip Op 05575

Decided on July 11, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 11, 2017
Friedman, J.P., Renwick, Andrias, Moskowitz, Gesmer, JJ.

4441N 380345/12

[*1] Franklin Credit Management Corporation, Plaintiff,

v

Theresa Striano Revocable Trust, Defendant-Respondent. 5 Boro Enterprises Group, LLC, Nonparty Appellant.

Law Office of Daniel H. Richland, PLLC, Lindenhurst (Daniel H. Richland of counsel), for appellant.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered August 3, 2015, which denied 5 Boro Group Enterprises, LLC's (5 Boro's) motions to, among other things, permanently enjoin the Receiver, his agents and employees from entering the subject premises, collecting rents or interfering with the possessory rights of 5 Boro (as successor in interest to plaintiff), without prejudice to seeking the same relief in a consolidated mortgage foreclosure action, unanimously reversed, on the law, without costs, and the motions granted.

By judgment of Supreme Court, Bronx County (Mark Friedlander, J.), entered March 8, 2013 in the underlying strict foreclosure action commenced by plaintiff, defendant's rights and interests were extinguished by its failure to file a notice of its intention to redeem the mortgage on the property sold to plaintiff, and plaintiff was deemed to hold the property free and clear from any and all such liens, encumbrances or interest (see RPAPL 1352; Bass v D. Ragno Realty Corp., 111 AD3d 863, 864-865 [2d Dept 2013]). Given that the Receiver at issue was appointed in the consolidated mortgage foreclosure action, that defendant's rights in that action are now extinguished by the judgment entered March 8, 2013, and that the Receiver is subject to the control of the court (see Matter of Kane [Freedman—Tenenbaum], 75 NY2d 511, 515 [1990]), the motion court should have granted 5 Boro's motions.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 11, 2017

CLERK