| NYCTL 2004-A Trust v Fulton St. Holding Corp. |
| 2007 NY Slip Op 07826 [44 AD3d 832] |
| October 16, 2007 |
| Appellate Division, Second Department |
| NYCTL 2004-A Trust et al., Respondents, v Fulton StreetHolding Corporation, Appellant, et al., Defendants. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen M. Robinson of counsel), forrespondents.
In an action to foreclose a tax lien, the defendant Fulton Street Holding Corporation appealsfrom an order of the Supreme Court, Kings County (Schack, J.), dated January 16, 2007, whichdenied its motion to compel the plaintiffs to provide it with an updated payoff letter crediting itwith the amount of a defaulting purchaser's deposit from a previous attempted foreclosure sale ofthe subject property.
Ordered that the order is affirmed, with costs.
Contrary to the appellant's contention, paragraphs 3 and 6 of the terms of sale in thisforeclosure action, when read together, did not compel the plaintiff to use the deposit forfeited bya prior defaulting purchaser (hereinafter the purchaser) to reduce the appellant's tax debt to theplaintiffs, even when that purchaser had informed the plaintiff that it had no objection to thatprocedure. Read together and construed in accordance with their plain meaning (see generally Beal Sav. Bank vSommer, 8 NY3d 318, 324-325 [2007]; W.W.W. Assoc. v Giancontieri, 77NY2d 157, 162 [1990]; Malleolo v Malleolo, 287 AD2d 603 [2001]; Albanese vConsolidated Rail Corp., 245 AD2d 475, 476 [1997]; Matter of Coppola v Stroker,235 AD2d 536, 537 [1997]), paragraphs 3 and 6 clearly provide that a defaulting purchaser'sdeposit shall be used to pay the plaintiffs' costs and fees associated with a resale of the premises,as well as interest to the date of delivery of the deed. They further provide [*2]that upon said resale, the defaulting purchaser will also be liable forany deficiency in the purchase price realized from the resale (see generally RenaissanceComplex Redevelopment Corp. v Renaissance Assoc., 255 AD2d 274 [1998]). Accordingly,neither the appellant nor the defaulting purchaser had any right or authority to direct that thedeposit be used to pay down the appellant's debt. Thus, the Supreme Court properly denied theappellant's motion to compel the plaintiffs to provide it with an updated payoff letter crediting itwith the amount of the deposit. Ritter, J.P., Florio, Lifson and Dillon, JJ., concur.