ADHY Advisors LLC v 530 W. 152nd St. LLC, 2011 NY Slip Op 02148 [82 AD3d 619]

March 24, 2011

Appellate Division, First Department

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Berliner & Pilson, Great Neck (Richard J. Pilson of counsel), for appellant.

Schwartz, Lichtenberg LLP, New York (Barry E. Lichtenberg of counsel), for respondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered September 17, 2010, which denied plaintiff’s motion to appoint a receiver pursuant to Real Property Law § 254 (10), unanimously affirmed, with costs.

Although the mortgage agreement at issue contains a provision which specifically authorizes the appointment of a receiver upon application by the mortgagee in any action to foreclose ( see Real Property Law § 254 [10]), it is well settled that “[a]n action to foreclose a mortgage is an action in equity” ( Jamaica Sav. Bank v M. S. Inv. Co. , 274 NY 215, 219 [1937]). Thus, a court of equity, in its discretion and under appropriate circumstances, may deny such an application ( see Maspeth Fed. Sav. & Loan Assn. v McGown , 77 AD3d 889 , 889-890 [2010]; Clinton Capital Corp. v One Tiffany Place Developers , 112 AD2d 911, 912 [1985]; Mancuso v Kambourelis , 72 AD2d 636, 637 [1979], appeal dismissed 48 NY2d 1027 [1980]; W. I. M. Corp. v Cipulo , 216 App Div 46 [1926]). Based upon the circumstances presented here, we find that the motion court properly exercised its discretion in declining to appoint a receiver. Concur—Mazzarelli, J.P., Saxe, Friedman, Acosta and Freedman, JJ..