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Mortgage Electronic Registration Systems, Inc. v. Elliot

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 26, 2010

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ETC., PLAINTIFF,
v.
MARY ELLIOT, ET AL., DEFENDANTS, NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION, APPELLANT;
CITIMORTGAGE, INC., NONPARTY-RESPONDENT.

In an action to foreclose a mortgage, the defendant New York City Department of Housing Preservation appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated May 1, 2008, as granted, in part, that branch of the motion of nonparty Citimortgage, Inc., which was for an award of an attorney's fee to be paid from the subject surplus funds.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, ANITA R. FLORIO and LEONARD B. AUSTIN, JJ.

(Index No. 15334/04)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of nonparty Citimortgage, Inc., which was for an award of an attorney's fee to be paid from the subject surplus funds is denied.

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; Realty Assoc. Sec. Corp. v Jaybar Realty Corp., 257 App Div 1001, 1001, affd 282 NY 603; Sadow v Poskin Realty Corp., 63 Misc 2d 499, 508-509). 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, P.J., MASTRO, FLORIO and AUSTIN, JJ., concur.

20100126

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