| Luna Light., Inc. v Just Indus., Inc. |
| 2007 NY Slip Op 09369 [45 AD3d 814] |
| November 27, 2007 |
| Appellate Division, Second Department |
| Luna Lighting, Inc., Appellant, v Just Industries, Inc.,Respondent, et al., Defendants. |
—[*1] Mitofsky Shapiro Neville & Hazen, LLP, New York, N.Y. (Terry L. Hazen of counsel), forrespondent.
In a consolidated action to foreclose three mortgages, the plaintiff appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated August8, 2006, as granted that branch of the motion of the defendant Just Industries, Inc., which was, ineffect, to compel it to calculate and provide a redemption price to that defendant and denied itscross motion, in effect, for summary judgment declaring that the defendant Just Industries, Inc.,is estopped from asserting the right, inter alia, to redeem the subject real property and to recoversurplus money.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Just Industries, Inc. (hereinafter JI), is the record owner of two parcels of realproperty in Brooklyn. On April 2, 1997, JI and the nonparty Broadway Studios, Inc. (hereinafterStudios), entered into a contract for the sale of the two parcels to Studios. The contract of salegave Studios the right to immediate possession of the real property.
The parcels, however, were encumbered by three mortgages which were in default, and byAugust 18, 1997, each mortgagee had commenced a foreclosure action and obtained a judgmentof foreclosure against JI. The plaintiff Luna Lighting, Inc. (hereinafter Luna), which is owned bythe same principal as Studios, acquired the interests of the mortgagees by assignment. [*2]Nonetheless, Luna has never proceeded to a foreclosure sale of theparcels.
Just before title was to close on the sale of the parcels from JI to Studios in September 1997,it was discovered that there was another judgment lien against JI, and the deed was neverdelivered to Studios. Studios, however, has remained in possession of the property and has beenmaintaining the property and paying the real property taxes since 1997. In 1999, JI was dissolvedby proclamation of the Secretary of State for nonpayment of its franchise taxes.
In 2005, JI, seeking to redeem the parcels out of foreclosure, requested that Luna deliver"payoff letters" for the three mortgages. When Luna refused, JI made three motions, one in eachof the foreclosure actions, in effect, to compel Luna to calculate the redemption price for thejudgments of foreclosure and provide it with that information in the form of a "payoff statement."Luna cross-moved, in effect, for summary judgment declaring that JI is "estopped fromexercising any and all rights, including rights to redeem, rights to surplus monies or otherwise, inany action to foreclose the mortgages held by" Luna. In support of its cross motion, Luna'sprincipal alleged that, shortly after title failed to close in 1997, the parties entered into anunsubscribed agreement pursuant to which JI allegedly agreed not to assert any rights in theforeclosure actions, and to essentially transfer the property to Studios without a deed. After thethree foreclosure actions were consolidated, the Supreme Court, treating JI's motions as a singlemotion, granted that motion, and denied Luna's cross motion. We affirm.
" 'A mortgagor or other owner of the equity of redemption of a property subject to ajudgment of foreclosure and sale may redeem the mortgage at any time prior to the foreclosuresale' " (Kolkunova v Guaranteed HomeMtge. Co., Inc., 43 AD3d 878, 878 [2007], quoting Norwest Mtge., Inc. v Brown, 35 AD3d 682, 683 [2006]).
Contrary to Luna's contention, although JI is a dissolved corporation, JI is not, by exercisingits right to redeem the mortgages, engaging in "new business" prohibited by BusinessCorporation Law § 1005 (a) (1). Rather, JI is pursuing a "remedy available to it in respectto the reacquisition of property it owned prior to its dissolution" (Matter of 172 E. 122 St.Tenants Assn. v Schwarz, 73 NY2d 340, 349 [1989]). Thus, JI is entitled to redeem thesubject real property, and is entitled to a calculation of the redemption price.
Also contrary to Luna's contention, the doctrine of part performance does not take the allegedunsubscribed agreement, pursuant to which JI purportedly waived its right of redemption, out ofthe statute of frauds (see General Obligations Law § 5-703 [1]), as Luna's andStudios' alleged actions were not "unequivocally referable" to the alleged agreement (MessnerVetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229 [1999];see Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Burns v McCormick, 233NY 230, 232 [1922]). Thus, JI's purported oral waiver of the right of redemption is notenforceable.
Luna's remaining contention is without merit. Schmidt, J.P., Rivera, Florio and Balkin, JJ.,concur.