Matter of Le Golgotha Lodge, Inc. v Tax Commn. of the City of N.Y.

Matter of Le Golgotha Lodge, Inc. v Tax Commn. of the City of N.Y. 2021 NY Slip Op 04359 Decided on July 14, 2021 Appellate Division, Second Department 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.

Decided on July 14, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
CHERYL E. CHAMBERS
ROBERT J. MILLER
ANGELA G. IANNACCI, JJ.
2018-04946
(Index No. 10422/15)

[*1]In the Matter of Le Golgotha Lodge, Inc., petitioner-respondent,

v

Tax Commission of the City of New York, et al., respondents, NYCTL 1998-2 Trust, etc., et al., appellants.

Bronster LLP, New York, NY (Nicole M. Ciolko of counsel), for appellants.

James E. Johnson, Corporation Counsel, New York, NY (Vincent D'Orazio and Andrea M. Chan of counsel), for respondents Tax Commission of the City of New York and Commissioner of Finance of the City of New York.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Tax Commission of the City of New York dated May 19, 2015, which, after a hearing, denied the petitioner's application for a property tax exemption pursuant to Real Property Tax Law § 420-a, NYCTL 1998-2 Trust and the Bank of New York Mellon appeal from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated February 8, 2018. The order denied the motion of NYCTL 1998-2 Trust and the Bank of New York Mellon to vacate the temporary stay of an action entitled NYCTL 2013-A Trust v Le Golgotha Lodge, Inc., pending in the Supreme Court, Kings County, under Index No. 500809/14.

ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is reversed, on the law, with costs, and the motion of NYCTL 1998-2 Trust and the Bank of New York Mellon to vacate the temporary stay of the action entitled NYCTL 2013-A Trust v Le Golgotha Lodge, Inc., pending in the Supreme Court, Kings County, under Index No. 500809/14, is granted.

The background facts relevant to this matter are set forth in our decision and order on a companion appeal (see Matter of Le Golgotha Lodge, Inc. v Tax Commn. of the City of N.Y., _____ AD3d _____ [Appellate Division Docket No. 2017-04234; decided herewith]).

In an order dated February 8, 2018, the Supreme Court denied the motion of NYCTL 1998-2 Trust and the Bank of New York Mellon, as collateral agent and custodian for NYCTL 1998-2 Trust (hereinafter together the Trust), to vacate the temporary stay of a tax lien foreclosure action pending in the Supreme Court, Kings County, under Index No. 500809/14 (hereinafter the foreclosure action). The Trust appeals.

The record evidence does not establish the petitioner's right to enjoin the Trust from [*2]prosecuting the foreclosure action pending the outcome of this proceeding (see Aetna Ins. Co. v Capasso, 75 NY2d 860; W.T. Grant Co. v Srogi, 52 NY2d 496, 517). Accordingly, the Trust's motion to vacate the temporary stay of the foreclosure action should have been granted.

LASALLE, P.J., CHAMBERS, MILLER and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court