Febbraro v. Febbraro , 1979 N.Y. App. Div. LEXIS 11989 ( 1979 )

— In an action to foreclose a mortgage and for the appointment of a receiver, the plaintiff appeals from an order of the Supreme court, Nassau County, entered January 4, 1979, which denied her motions for summary judgment and the appointment of a temporary receiver and granted the respondent’s cross motion for summary judgment. Order reversed, on the law, without costs or disbursements, plaintiff’s motions are granted, respondent’s cross motion is denied and the action is remitted to Special Term for the appointment of a receiver and entry of an appropriate judgment. The affidavits and exhibits submitted by the parties establish that the mortgage provided that the mortgagor was to pay his indebtedness of $8,500 in monthly installments of $125 per month on the first day of each month and that if he defaulted in the payment of any installment for 15 days the mortgagee could elect to declare the whole of the said sum owed due. The record further establishes that the mortgagor defaulted, that the plaintiff mortgagee did make such election in timely fashion and that the mortgagor’s tender of the July payment was not made until after plaintiff had made her election and took overt action to notify the mortgagor that she had done so. The mortgagee is under no duty to prove the necessity for the appointment of a receiver since the language of the mortgage and of subdivision 10 of section 254 of the Real Property Law clearly entitle her to the appointment of a receiver of the rental income of the mortgaged property. O’Connor, J. P., Rabin, Shapiro and Mangano, JJ., concur.