113 Misc. 2d 304 | N.Y. Sup. Ct. | 1982
OPINION OF THE COURT
Plaintiff City of New York moves for an order directing the entry of summary judgment, pursuant to CPLR 3212, in this action to foreclose a mortgage. Defendant Becksmad Gardens, Inc. (Becksmad) cross-moves for summary judgment.
This action involves a mortgage on two buildings under the Mitchell-Lama program. Defendant Becksmad is a rental housing company organized under article 2 of the Private Housing Finance Law in 1966. The city provided a $2,253,800 consolidated Mitchell-Lama mortgage loan, for renovations, to defendant Becksmad, which is the subject of this action. Defendant has been in arrears on the mortgage since 1972. It does not dispute that it executed the mortgages nor that it is in default.
The defendant relies on two basic arguments in opposition to summary judgment and in support of its own summary judgment motion.
The major argument of Becksmad deals with its interpretation of section 94 of the Private Housing Finance Law. Defendant relies upon subdivision 1 of section 94 of the Private Housing Finance Law, which provides in part that: “Foreclosure shall not be decreed unless the court to which the application therefor is made shall be satisfied that the interests of the lienholder or holders can not be adequately secured or safeguarded except by the sale of the property.”
Defendant alleges that an issue exists as to whether the city has explored other avenues to safeguard its interest. However, subdivision 2 of section 94 of the Private Housing Finance Law expressly excludes “a government” from the need to consider such alternative measures, otherwise required under subdivision 1 of section 94 of the Private Housing Finance Law. Defendant’s contention that New York City is not a “government” within the subdivision is unsupported, and defies plain meaning. Moreover, the legislative history is clear that the Private Housing Finance Law is derived from the Public Housing Law, which contains subdivision 11 of section 3, expressly defining the term “government” as including municipalities.
In any event, even should the city be held to the requirements of subdivision 1 of section 94 of the Private Housing Finance Law, defendant has failed to establish the existence of any alternative that would protect the interests of plaintiff. The city has not rushed into the foreclosure proceeding but has patiently attempted a resolution of the dilemma over several years.
In effect, defendant concedes plaintiff’s allegations as to its default, but asks the court’s intervention to prevent the loss of defendant’s equity. Regrettable as the situation is, the law is very plain that the city is entitled to the relief it seeks.
Accordingly, the plaintiff’s motion for summary judgment is granted and the cross motion is denied.