McArdle v. McGregor

May 24, 1999
Versions:261 A.D.2d 591
688 N.Y.S.2d 919
1999 N.Y. App. Div. LEXIS 5616

—In an action to foreclose a mortgage, the defendants Christopher S. McGregor and Lorin McGregor appeal from an order of the Supreme Court, Orange County (Owen, J.), dated September 9, 1997, which, inter alia, granted the plaintiffs motion for summary judgment on the complaint. The appeal brings up for review so much of an order of the same court, dated November *5927, 1997, as, upon reargument, adhered to the original determination (see, CPLR 5517 [b]).

Ordered that the appeal by Lorin McGregor is dismissed, without costs or disbursements, for failure to perfect the appeal in accordance with the rules of this Court (see, 22 NYCRR 670.8 [e]); and it is further,

Ordered that the appeal by Christopher S. McGregor from the order dated September 9, 1997, is dismissed, without costs or disbursements, as that order was superseded by the order dated November 7, 1997, made upon reargument; and it is further,

Ordered that the order dated November 7, 1997, is affirmed insofar as reviewed, without costs or disbursements.

In Carman v European Am. Bank & Trust Co. (78 NY2d 1066, 1067), the Court of Appeals stated, “It is elementary * * * that liens and other similar secured interests ordinarily survive bankruptcy (see, e.g., Farrey v Sanderfoot, 500 US [291]; Long v Bullard, 117 US 617; Matter of Tarnow, 749 F2d 464, 465-466). Moreover, a creditor need not object to the bankrupt’s discharge in order to preserve its lien, since the discharge does not affect the lien”. In light of this principle, the arguments advanced by Christopher S. McGregor are clearly without merit (see also, Johnson v Home State Bank, 501 US 78; Estate of Lellock v Prudential Ins. Co., 811 F2d 186, 189; Bank of N. Y. v Magri, 226 AD2d 412; Matter of Leonard v Brescia Lbr. Corp., 174 AD2d 621). Bracken, J. P., Thompson, Altman and Krausman, JJ., concur.