Griffiths v. Jefferds

— Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Plaintiffs purchased a trailer park from defendants and executed a purchase-money mortgage. Defendants thereafter exercised what they contend was a right of assignment of rents granted them in the mortgage, and plaintiffs responded by commencing an action for tortious interference with contract. During the pendency of that action, defendants began foreclosure of the mortgage by advertisement pursuant to RPAPL article 14. In a motion in the pending tort action, plaintiffs sought relief from the foreclosure, characterized in the notice of motion as a preliminary injunction and in the supporting affidavit as a stay. Without specifying whether it was acting pursuant to CPLR 2201 or CPLR article 63, the court ordered a stay of the foreclosure. This was error. Since foreclosure by advertisement is not a judicial proceeding (15 Carmody-Wait 2d, NY Prac § 93:1), CPLR 2201 is inapplicable. Since no undertaking was ordered, the requirements of CPLR article 63 were not met. Thus, that portion of the order directing a stay is vacated.

We note that although defendants have argued that the court erred in failing to disqualify plaintiffs’ attorney, who represented all parties when the mortgage was drawn and executed, the order appealed from does not address this issue and thus the issue is not before us.

We have examined defendants’ other contentions and find them without merit. (Appeal from order of Supreme Court, Allegany County, Sprague, J. — dismiss complaint.) Present— Callahan, J. P., Denman, Boomer, Pine and Balio, JJ.