Maple Parkway Associates v. MPA Revival Realty Corp.

Majority

p. 592

Maple Parkway Associates, Respondent-Appellant, v MPA Revival Realty Corp. et al., Defendants, and Siegfried Schemitsch et al., Appellants-Respondents. (Action No. 1.) Siegfried Schemitsch et al., Appellants-Respondents, v MPA Revival Realty Corp. et al., Respondents-Appellants, and City of New York et al., Defendants. (Action No. 2.)

[668 NYS2d 498]

In related actions to foreclose a first and second mortgage, respectively, upon real property, (1) Siegfried Schemitsch, Salvatore D’Agostino, Robert W. McErlean, Robert J. McErlean, and Rose Ullrich, defendants in Action No. 1, ap

p. 593

peal from so much of an order of the Supreme Court, Richmond County (Mastro, J.), dated October 17, 1996, as, in effect, denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them, (2) Maple Parkway Associates, the plaintiff in Action No. 1, cross-appeals from so much of the same order as denied its motion for summary judgment, (3) the plaintiffs in Action No. 2 appeal from so much of an order of the same court, also dated October 17, 1996, as denied their motion for summary judgment, and (4) MPA Revival Realty Corp. and Maple Parkway Associates, the defendants in Action No. 2, cross-appeal from so much of the same order as, in effect, denied their cross motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the orders are affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

There are material questions of fact concerning, in Action No. 1, whether the mortgage held by the plaintiff was extinguished by the merger doctrine, and, in Action No. 2, whether the mortgage held by the plaintiffs has priority over a prior mortgage held by the defendant Maple Parkway Associates.

The parties’ remaining contentions are either unpreserved for appellate review or without merit.

O’Brien, J. P., Sullivan, Friedmann and Goldstein, JJ., concur.