N.Y. Real Property Actions & Proceedings Law § 1921-a: Partial release from lien of mortgaged premises

§ 1921-a. Partial release from lien of mortgaged premises. 1. Whenever

the owner of mortgaged property situate in this state shall be entitled,

pursuant to the terms of the mortgage encumbering such property, to

obtain the release of a portion thereof from the lien of such mortgage,

then, upon (1) delivery by such owner to the mortgagee of a partial

release from lien of mortgaged premises, in a form entitled to be

recorded, describing the portion of the mortgaged premises so entitled

to be released, together with the fees allowed by law for the taking of

the acknowledgment of a deed, (2) proof that all requirements set forth

in such mortgage as conditions precedent to the execution and delivery

by the mortgagee of such partial release have been satisfied, and (3)

payment, or tender of payment, to the mortgagee of all sums required

under the terms of the mortgage to be paid to obtain such partial

release, such mortgagee must execute and acknowledge before a proper

officer, in like manner as to entitle a conveyance to be recorded, the

partial release theretofore delivered to such mortgagee or such other

partial release from lien of mortgaged premises as may be required to be

executed under the terms of the mortgage, which release shall be in

recordable form.

2. Upon the failure or refusal of any such mortgagee to comply with

the foregoing provisions of this section, any owner of the mortgaged

premises may apply to the supreme court or a justice thereof, or to the

county court or a judge thereof, in or of any county in which the

mortgaged premises or any part thereof are situated in whole or in part,

upon a petition, for an order to show cause why an order should not be

made by such court releasing of record from the lien of said mortgage

the parcel or parcels of land described in said release, and directing

the register or clerk of any county in whose office the same may have

been recorded to mark the same upon his records as released as to the

parcel or parcels described in such order, and further ordering and

directing that the debt or other obligation secured by the mortgage be

reduced in the amount tendered or paid, upon condition that in the event

such mortgage or part thereof is not paid, the sums tendered pursuant to

the foregoing provisions of this section be paid to the officer

specified by law to hold court funds and moneys deposited in court in

the county wherein the mortgaged premises are situated in whole or in

part for the purpose of paying said sum over to the mortgagee. Said

petition must be verified in like manner as a verified pleading in an

action in the supreme court and it must set forth the grounds of the

application.

3. In any case where an actual tender, as provided in subdivision one

of this section, cannot, with due diligence, be made, any owner of the

mortgaged premises may apply to the supreme court or a justice thereof,

or to the county court or a judge thereof, in or of any county in which

the mortgaged premises, or any part thereof are situated in whole or in

part, upon petition setting forth the grounds of the application and

verified as aforesaid, for an order to show cause why an order should

not be made by said court releasing of record the parcel or parcels

described in said release from the lien of the mortgage, and directing

the register or clerk of every county in which the mortgaged premises

are located to mark the same upon his records as released as to the

parcel or parcels described in such order and further ordering and

directing that the debt or other obligation secured by the mortgage be

reduced, upon condition that the prerequisites for obtaining such

release set forth in subdivision one of this section and the sum of the

mortgage required to be paid pursuant to the terms and conditions of

said mortgage and fees allowed by law or the mortgage, be paid to the

officer specified by law to hold court funds and moneys deposited in

court in the county wherein the mortgaged premises are situated in whole

or in part until such time as said sums may be claimed by the mortgagee.

4. Eight days' notice of the application for either of the orders

provided for in subdivisions two and three of this section shall be

given to the mortgagee. Such notice shall be given in such manner as the

court or the judge or justice thereof to whom the petition is presented

may direct, and said court or judge or justice may require such longer

notice to be given as may seem proper. If sufficient cause be shown the

court or judge or justice thereof may issue such order to show cause

returnable in less than eight days.

5. Upon the return day of such order to show cause, the court, upon

proof of due service thereof and on proof of the identity of the

mortgagee and of the person presenting the petition, shall inquire, in

such manner as it may deem advisable, into the truth of the facts set

forth in the petition, and in case it shall appear that said sum or sums

required to be paid pursuant to the terms and conditions of the mortgage

and the fees allowed by law have been duly paid or tendered but not

accepted, said partial release from lien of mortgage instrument has been

duly presented for execution, or that such tender and presentation could

not have been made with due diligence and the prerequisites for

obtaining such release as set forth in subdivision one of this section

have been met, then, in the event that portion of the lien of such

mortgage required to be released pursuant to the terms and conditions

thereof is not so released, the court shall make an order directing the

sums so tendered, or in a case where such tender could not have been

made as aforesaid, directing the sum or sums so required and the fees

allowed by law, to be paid to the officer specified by law to hold court

funds and moneys deposited in court in the county wherein the

application herein is made, and directing and ordering that upon such

payment the debt or other obligation secured by the mortgage be reduced

and further directing the register or clerk of every county in which the

mortgaged premises are located to mark said mortgage reduced of record

upon the production and delivery to such register or clerk of a

certified copy of the order and the receipt of such officer showing that

the amount required by said order and which receipt shall be recorded,

filed and indexed by any such register or clerk in the same manner as a

certificate of discharge of a release from lien of mortgaged premises.

Said receipt need not be acknowledged to entitle it to be recorded. The

court in its discretion, when granting any such order after application

therefor pursuant to subdivision two of this section, may award costs

and reasonable attorneys' fees to the person making the application, in

the absence of the showing of a valid reason for the failure or refusal

to execute the partial release from lien of mortgaged premises and

deliver the same. The money deposited shall be payable to the mortgagee,

his representatives or assigns, less any court costs and reasonable

attorneys' fees allowed by the court as herein provided which shall be

paid to the owner of the mortgaged premises who has made application for

the order herein referred to upon an order of the supreme court or

county court, directing the payment thereof to such owner upon such

evidence as to his right to receive the same as shall be satisfactory to

the court.

6. Wherever any register or clerk shall record any order and receipt

as hereinbefore specified, he shall mark the record of said mortgage, if

same be recorded, as follows:

"Part of the premises herein described have been released from lien of

this mortgage by order of the__________________court, County of

___________, dated___________and filed____________a description of the

property so released being contained in such order" and thereupon the

lien of such mortgage shall be deemed to be released as to the premises

so described in such order and the debt or obligation secured thereby

shall be deemed to be reduced as provided in such order. Said register

or clerk shall be permitted to charge for recording and filing said

order and receipt, the same fees to which he is entitled for recording

and filing a certificate of release of lien of mortgaged premises.

7. The word "mortgagee" whenever used in this section shall be

construed to include the persons entitled to enforce or satisfy the

mortgage and the personal representatives, successors and assigns, of

such persons.

8. Nothing contained in this section shall limit or abridge any rights

or remedies otherwise available at law or in equity to the owner of the

mortgaged premises or any other person having an interest in such

mortgaged premises.