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Mortgage Electronic Registration Systems, Inc. v. Mary Elliot, and New York City Department of Housing Preservation, Citimortgage, Inc., Nonparty
[912] There is no authority for the allowance of an attorney’s fee from the surplus funds in an action to foreclose a mortgage (see Reilly v Empire State Improvement Corp., 251 NY 351, 353 [1929]; Realty Assoc. Sec. Corp. v Jaybar Realty Corp., 257 App Div 1001, 1001 [1939], affd 282 NY 603 [1940]; Sadow v Poskin Realty Corp., 63 Mise 2d 499, 508-509 [1970]). Thus, the Supreme Court was without authority to award $3,000 from the surplus funds to Sweeney, Gallo, Reich & Bolz, LLP attorneys for the nonparty claimant Citimortgage, Inc., as an attorney’s fee.
The parties’ remaining contentions either are without merit or need not be reached in light of our determination. Prudenti, PJ., Mastro, Florio and Austin, JJ., concur,