First National City Bank v. Tara Realty Corp.

[461] OPINION OF THE COURT Kupferman, J. The dissenting opinion fairly sets forth the facts in this litigation on priority of liens, and only slight amplification is required. It appears that the Director of Finance of the City of New York is holding some $96,000 for distribution in accordance with the proper order of priority. The claim of Long Island Beef Co. as supplier for amounts still due from the restaurant known as Danny’s Hide-a-way is for some $181,000. The claim of the Brunos, who are close relatives of Mr. Stradella, who operated Danny’s Hide-a-way and was the principal in Tara Realty Corporation, which owned the restaurant building, is some $57,000. If the moneys available are distributed in accordance with the analysis in the dissenting opinion, the bulk thereof would go to the relatives, with the remainder to the Teachers Insurance and Annuity Association of America, which inexplicably loaned some $139,000 on a restaurant building and received a mortgage in connection therewith, and recorded it on October 31, 1974. At that time, a mortgage in the face amount of $100,000 was of record to the supplier and was unpaid and unsatisfied. There was also a side agreement with the supplier, which provided for securing "all sums now due and owing or to become due and owing”. We are convinced that with the mortgage of record, the subsequent mortgagee had a duty to make inquiry. The fact that thereafter payments were made on the supplier’s mortgage and also of amounts due in connection with the unrecorded side agreement does not alter the situation. Although the court at Special Term bottomed its determination on the conclusion that "the agreement to secure future advances need not be incorporated in the [recorded] mortgage itself, so long as the agreement, as here, is made prior to the recordation of the junior liens”, we base our conclusion on the fact that the unsatisfied $100,000 mortgage of record was in and of itself notice to the subsequent mortgagee under the circumstances of this case, at least as to the amount on the face thereof. The judgment of Supreme Court, New York County (Fraiman, J.), entered June 16, 1977, granting priority to the defendant Long Island Beef Co., should be affirmed, without costs.