1180 Anderson Avenue Realty Corp. v. Mina Equities Corp. , 465 N.Y.S.2d 511 ( 1983 )

Kupferman, J. P.

(dissenting). The majority, by its interpretation of a claimed but outmoded practice, would make the plaintiff, who has been in substantial default, into a party aggrieved, and make the defendant, who was deprived of its bargain, into a malefactor liable in damages.

Further, under the majority interpretation, there would be little point to a provision in section 294-a of the Real Property Law, “Recording assignments of rent”: “2. Every such assignment not so recorded shall be void as against any person who subsequently purchases or acquires by exchange, or contracts to purchase or acquire by exchange, the same real property, or any portion thereof, or acquires by assignment the rent to accrue therefrom as provided in this section, in good faith and for a valuable consideration, from the same vendor or assignor, his distributees or devisees, and whose conveyance, contract or assignment is first duly recorded.” (Italics added.)

How could a prior recording rent assignee have a priority on rent collection despite a subsequent recording mortgagee with a rent assignment, if the requirement is first for foreclosure or for appointment of a receiver or for a demand?

The defendant was not acting wrongfully when it collected the rents, and, consequently, there was no trespass.

Sandler, Ross and Alexander, JJ., concur with Asch, J.; Kupferman, J. P., dissents in an opinion.

Order, Supreme Court, Bronx County, entered on February 7, 1983, reversed, on the law, without costs and without disbursements, and plaintiff’s cross motion for summary judgment granted as to liability only, and an assessment of damages directed.