Citation Numbers: 185 Misc. 2d 481, 713 NYS2d 276
Judges: Bowman
Filed Date: 8/22/2000
Status: Precedential
Modified Date: 2/5/2022
Plaintiff, assignee-mortgagee, moves for an order directing that the tenant of a condominium located at 1563 Unionport Road, Unit 4A, Bronx, New York (subject unit), turn over all rents to the plaintiff. The defendant Board of Managers of the Parkchester South Condominium, Inc. (Parkchester), which sets forth the bylaws of the subject unit, opposes the motion. For the reasons set forth, the plaintiffs motion is denied.
Discussion
As an initial matter, it should be noted that neither of the parties requested the court’s permission to serve and file sur-replies. Consequently, the sur-reply and sur sur-reply were not considered in rendering this decision and order.
The plaintiff brought this action for a mortgage foreclosure on the subject unit, based on the unit holder’s default on the mortgage payments. The plaintiff financed the unit holder’s purchase of the unit. The unit holder also defaulted on his payments of common charges to Parkchester. Parkchester obtained a judgment lien on the subject unit.
The plaintiff contends that the tenant occupying the subject property is required to tender the rent to the plaintiff based on a mortgage provision authorizing it to collect rents in the event that the mortgagor defaulted under the terms of the mortgage. Parkchester contends that the condominium’s bylaws provide that it is entitled to rent for the subject premises upon the owner’s failure to pay common charges. Parkchester argues that its claim for past due common charges and subsequent judgment lien against the rent is entitled to priority pursuant to Real Property Law § 339-kk, authorizing condominium associations to obtain all rental payments from a tenant where the nonoccupying owner rents a dwelling unit and fails to make payments due for common charges.
Defendant Parkchester’s contention that their judgment lien is superior to the plaintiffs mortgage lien is erroneous. Real Property Law § 339-kk defines the rights of condominium associations as against those of unit owners and not as to rights against first mortgagees. Moreover, Real Property Law § 339-kk clearly provides that the section does not limit unit owners’ rights under any other law or agreement. Real Property Law § 339-z, however, makes clear that where a board of managers of a condominium holds a lien for unpaid common charges, such
However, since there is still a pending foreclosure action, this motion is premature.
Accordingly, the plaintiffs motion is denied.