NYCTL 2004 TRUST v. FULTON STREET HOLDING CORPORATION (2007)

In an action to foreclose a tax lien, the defendant Fulton Street Holding Corporation appeals from an order of the Supreme Court, Kings County (Schack, J.), dated January 16, 2007, which denied its motion to compel the plaintiffs to provide it with an updated payoff letter crediting it with the amount of a defaulting purchaser's deposit from a previous attempted foreclosure sale of the subject property.

ORDERED that the order is affirmed, with costs.

Contrary to the appellant's contention, paragraphs 3 and 6 of the terms of sale in this foreclosure action, when read together, did not compel the plaintiff to use the deposit forfeited by a prior defaulting purchaser (hereinafter the purchaser) to reduce the appellant's tax debt to the plaintiffs, even when that purchaser had informed the plaintiff that it had no objection to that procedure.   Read together and construed in accordance with their plain meaning (see generally Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324-325, 834 N.Y.S.2d 44, 865 N.E.2d 1210;  W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639;  Malleolo v. Malleolo, 287 A.D.2d 603, 731 N.Y.S.2d 752;  Albanese v. Consolidated Rail Corp., 245 A.D.2d 475, 476, 666 N.Y.S.2d 680;  Matter of Coppola v. Stroker, 235 A.D.2d 536, 537, 653 N.Y.S.2d 134), paragraphs 3 and 6 clearly provide that a defaulting purchaser's deposit shall be used to pay the plaintiffs' costs and fees associated with a resale of the premises, as well as interest to the date of delivery of the deed.   They further provide that upon said resale, the defaulting purchaser will also be liable for any deficiency in the purchase price realized from the resale (see generally Renaissance Complex Redevelopment Corp. v. Renaissance Assoc., 255 A.D.2d 274, 680 N.Y.S.2d 248).   Accordingly, neither the appellant nor the defaulting purchaser had any right or authority to direct that the deposit be used to pay down the appellant's debt.   Thus, the Supreme Court properly denied the appellant's motion to compel the plaintiffs to provide it with an updated payoff letter crediting it with the amount of the deposit.