Lehman Bros. Holdings, Inc. v. Penson

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered October 16, 2002, which, inter alia, granted plaintiff’s assignee the money remaining in the receiver’s account after payment of fees upon discharge of the receivership, namely, $150,455.98 plus interest, unanimously affirmed, with costs. Appeal from the decision of the same court and Justice, dated September 11, 2002, unanimously dismissed, without costs, as taken from a nonappealable paper. In connection with its acquisition of the mortgage from plaintiff, Athena-Liberty Finance released defendant mortgagor Liberty Warehouse from further liability on condition that the latter not interfere with or jeopardize the validity of the loan. This did not constitute a satisfaction of the mortgage, which might have entitled the mortgagor to any remaining funds (cf. First Natl. Bank & Trust Co. of Ellenville v Hyman Novick Realty Corp., 68 AD2d 191 [1979], lv denied 49 NY2d 702 [1980]). The only question, then, was whether the judgment of foreclosure exceeded the price paid at the foreclosure sale by an amount equal to or exceeding the amount remaining in the receiver’s account after all expenses are paid (see RPAPL 1371 [4]; Columbian Mut. Life Ins. Co. v Horizons of Schuyler, 229 AD2d 978 [1996], lv dismissed 89 NY2d 860 [1996]). Concur— Nardelli, J.E, Mazzarelli, Ellerin and Friedman, JJ.