5th Avenue Park View, Ltd., Plaintiff-Respondent, v. 235 (1997)

Order, Supreme Court, New York County (Carol Huff, J.), entered on or about June 7, 1996, which denied defendant-appellant condominium's motion for a preliminary injunction restraining plaintiff-respondent 5th Avenue Park View, Ltd. from transferring 13 commercial condominium units until such time as the outstanding real estate taxes on the property are paid, with proof of payment provided, unanimously reversed, on the law and the facts, without costs, and the motion for a preliminary injunction is granted.

As we previously determined in a related appeal between these parties (see, Board of Managers of 235 East 22nd Street Condominium v. Lavy Corp., 233 A.D.2d 158, 649 N.Y.S.2d 668), defendant condominium is entitled to a preliminary injunction restraining 5th Avenue Park View Limited, to whom the subject mortgage was assigned upon foreclosure, from transferring 13 of the commercial units until such time as the outstanding real estate taxes on the property are paid.   The referee at foreclosure erroneously paid the full proceeds of the sale to the assignee, rather than paying the taxes and other expenses of the sale pursuant to RPAPL § 1354(1)-(3).   Defendant's lien for over $570,000 of unpaid common charges was extinguished at the initial foreclosure, and the assignee's continued failure to pay the back taxes on the property would likely relegate defendant's new lien for accrued common charges to junior status, or would extinguish it completely.   Thus, defendant has made the requisite showing that it will suffer irreparable harm in the absence of the relief requested, and that the equities lie in its favor.

Motion for a stay granted to extent of continuing the existing stay until the last of the three appeals is determined and otherwise denied and cross-motion for consolidation denied.

MEMORANDUM DECISION.