IN RE: MIKAL REALTY CO. (2000)

In a proceeding pursuant to RPAPL 1921 to cancel and discharge a mortgage upon real property, the petitioner Mikal Realty Co. appeals from a judgment of the Supreme Court, Suffolk County (D'Emilio, J.), dated October 1, 1998, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

Contrary to the petitioner's contention, the Supreme Court properly denied its petition to discharge the subject mortgage pursuant to RPAPL 1921.   That statute, in relevant part, authorizes any person having an interest in a mortgage to apply for an order discharging the mortgage where the mortgagee, after the tender of all outstanding principal, interest, and other amounts due thereunder, refuses to execute a satisfaction of mortgage.

Here, however, the proof submitted by the petitioner demonstrates, inter alia, that four payments were made at least one month late.   In addition, the petitioner failed to make 10 monthly payments before tendering the amount it claimed it owed.   As the amount tendered failed to include interest which accrued during the petitioner's delinquency, and late fees which accrued after the respondents advised the petitioner that they were revoking the waiver of their right to demand late fees (see, RPAPL 1921[1];  Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265), the court properly denied the petition (see, RPAPL 1921[7];  Household Fin. Realty Corp. v. Delmerico, 202 A.D.2d 636, 609 N.Y.S.2d 310).

MEMORANDUM BY THE COURT.