Upon the foregoing papers petitioner moves by order to show cause and petition for an order discharging of record a certain mortgage for one hundred thirty five thousand dollars dated March 28, 1993 and recorded April 28, 1993 between Roxanne English and Bentley Harry mortgagor, and Vasant Godbole and Shubhada Godbole mortgagee which was assigned to defendant Sharon Beth Weinstock on September 22, 1993. The mortgage constitutes a lien on the premises 651 Marcy Avenue, Brooklyn NY Petitioner Kosc Development, Inc. became the owner of 651 Marcy Avenue, Brooklyn NY by deed from Bentley Harry dated January 21, 2005, recorded on April 4, 2005.

On January 4, 2007 the original return date of this order to show cause defendant Weinstock did not appear and the affidavit of personal service upon her was presented to the Court. The motion, however, was adjourned to January 18, 2007 to allow petitioner to effect personal service on the Register of the City of New York in the County of Kings as was required by the order to show cause. Defendant Weinstock was notified by regular mail of the adjourn date. On January 18, 2007 defendant Weinstock again failed to appear. Petitioner submitted on that day the affidavit of personal service upon the Kings County Register's Office.

The affidavit of service on the Register's Office indicates service was made by serving one "Leslie Hill" personally. No indication is given as to whether he is a clerk, a receptionist, or agent authorized to accept service on behalf of the Register, or his relationship with to respect to the King's County Register's office. However, even assuming personal service was properly effectuated upon the Register, there is an insufficient basis for the Court to grant the requested relief of discharging the mortgage.

Petitioner does not identify what provision of law it is proceeding under, however [*2]presumably it is Real Property Actions and Proceedings Law ("RPAPL") § 1921. This section provides in pertinent part that any person having an interest in the mortgaged premises may apply to the court for discharge of the mortgage and to direct the register of the county where it was recorded to mark his records as cancelled or discharged. However prerequisite to doing so there must have been a failure or refusal of the mortgagee to execute a proper satisfaction of mortgage. RPAPL §1921.1, (see Matter of Jeffrey Towers v Straus, 31 AD2d 319 (2d Dept 1969) affd 26 NY 812 (1970); petitions submitted pursuant to RPAPL §1921 require a showing of willful and unjustified refusal on the part of the mortgagee to satisfy the mortgage). No such showing is made in the petition now before the Court, rendering the petition deficient.

Additionally the mortgage made by Roxanne English and Harry Bentley was for the sum of $135,000.00, however the assignment (Exhibit C) recites that Vasant Godbole and Shubada Godbole assigned only $12,000 of their interest in the mortgage to Sharon Beth Weinstock. As Vasant Godbole and Shubhada Godbole have assigned only $12,000.00 of the mortgage and not the entire remaining balance, they need to be named and served in this proceeding in order to discharge the mortgage of record.

Further there are conclusory allegations made in the petition that are devoid of any factual basis. For instance it is alleged in the petition at paragraph 7 that, "[s]aid mortgage was upon information and belief fully paid on or about January 1995", however no facts or information is given for forming this belief. Similarly paragraph 8 states, "[p]etitioner alleges that no payment of interest or principle has been made on the said mortgage in the past 10 years", however as petitioner only became the owner of 651 Marcy Avenue, Brooklyn NY two years ago, it is not explained how petitioner knows definitively that no payments had been made in the prior eight years toward the mortgage.

Finally as the assignment itself does not contain an address for Sharon Beth Weinstock

there should be some showing or basis in the petition for the belief that the Sharon Beth Weinstock served in Queens, New York is in fact the Sharon Beth Weinstock to whom the assignment was granted. Prior to extinguishing a recorded mortgage the Court must be convinced that there exists a rational basis for concluding that the Sharon Beth Weinstock served was in fact the mortgagee of the premises.

Accordingly for the above indicated reasons the petition seeking discharge of the subject mortgage is denied without prejudice.

The foregoing constitutes the decision and order of the Court.

E N T E R

J. S. C.