| GECMC 2007-C1 Ditmars Lodging, LLC v Mohola, LLC |
| 2011 NY Slip Op 04630 [84 AD3d 1311] |
| May 31, 2011 |
| Appellate Division, Second Department |
| GECMC 2007-C1 Ditmars Lodging, LLC,Respondent, v Mohola, LLC, et al., Appellants, et al.,Defendants. |
—[*1] Alston & Bird, New York, N.Y. (John P. Doherty and Jennifer S. Kozar of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Mohola, LLC, P & P LaGuardia, LLC,Ranji Patel, and Edward I. Penson appeal from an order of the Supreme Court, Queens County(Kitzes, J.), entered July 6, 2010, which denied their motion to dismiss the complaint insofar asasserted against them pursuant to CPLR 3211 (a) (3), and denied their separate motion to vacatean order of the same court entered April 7, 2010, granting the plaintiff's motion for theappointment of a temporary receiver for real property located at 94-00 Ditmars Boulevard, EastElmhurst, New York.
Ordered that the order entered July 6, 2010, is affirmed, with costs.
The appellants moved pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar asasserted against them, alleging that the plaintiff lacked standing to maintain this action. Contraryto the appellants' contention, the complaint and annexed documents established that the plaintiffwas validly assigned the note and mortgage that is the subject of this foreclosure action (seeMortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2007]; see also U.S.Bank N.A. v Pia, 73 AD3d 752, 753 [2010]). Accordingly, the Supreme Court properlydenied the appellants' motion pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar asasserted against them.
Further, the Supreme Court did not improvidently exercise its discretion in denying theappellants' separate motion to vacate a prior order appointing a temporary receiver for the realproperty secured by the subject mortgage. The mortgage agreement at issue includes a provisionexpressly authorizing, in an action to foreclose the mortgage, the appointment of a receiver"without notice and without regard to the adequacy of the security for the Debt and withoutregard for the solvency of [the] Borrower." Thus, the plaintiff was entitled to the appointment ofa temporary receiver without notice and without regard to the adequacy of the security for theloan, "regardless of proving the necessity for the appointment" (Naar v Litwak & Co.,260 AD2d 613, 614 [1999]; see Real Property Law § 254 [10]; see alsoMaspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 890, 891 [2010]). Further, althougha court of equity may vacate an order appointing a receiver in its discretion and under appropriatecircumstances (see Naar [*2]v Litwak & Co., 260 AD2dat 614-615; Clinton Capital Corp. v One Tiffany Place Developers, 112 AD2d 911, 912[1985]), the circumstances did not warrant vacatur here (see Maspeth Fed. Sav. & Loan Assn.v McGown, 77 AD3d at 891; Naar v Litwak & Co., 260 AD2d at 614-615). Rivera,J.P., Balkin, Lott and Austin, JJ., concur. [Prior Case History: 2010 NY Slip Op31790(U).]