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VENTURE I, INC., ETC., appellant, v. GEORGE VOUTSINAS, ET AL., respondents.

DECISION ORDER

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs to the respondents.

The Supreme Court providently exercised its discretion in granting the motion of the defendant Daniel Perla Associates, LP, to direct the plaintiff to assign the subject mortgage to it upon payment of the amount due on the mortgage. Where, as here, "the owner of a senior mortgage is seeking to enforce collection by foreclosure, the holder of a junior mortgage is entitled to redeem and to be subrogated to the rights of the senior mortgage, and may, upon tender of the amount due, with interest and costs, compel an assignment of the mortgage" (78 N.Y. Jur 2d, Mortgages § 360; see Twombly v. Cassidy, 82 N.Y. 155; Matter of Ryan, 216 App. Div 619).

The Supreme Court also providently exercised its discretion in denying the plaintiff's subsequent motion to voluntarily discontinue the action ( see Tucker v. Tucker, 55 N.Y.2d 378, 383). The record supports the finding that the plaintiff was merely attempting to circumvent the order directing it to assign the subject mortgage ( see Aison v. Hudson Riv. Black Riv. Regulating Dist., 279 A.D.2d 754, 755).

The plaintiff's remaining contention is without merit.

SMITH, J.P., H. MILLER, S. MILLER and LUCIANO, JJ., concur.

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VENTURE I, INC. v. VOUTSINAS
(Jun 14, 2004)