           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
380
CA 10-01581
PRESENT: CENTRA, J.P., CARNI, GREEN, AND GORSKI, JJ.


KEVIN T. STOCKER, PLAINTIFF-RESPONDENT,

                     V                            MEMORANDUM AND ORDER

2900 TRANSIT ROAD LLC, DEFENDANT-APPELLANT.


THE GARAS LAW FIRM, LLP, BUFFALO (JOHN C. GARAS OF COUNSEL), FOR
DEFENDANT-APPELLANT.

KEVIN T. STOCKER, TONAWANDA, PLAINTIFF-RESPONDENT PRO SE.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered March 10, 2010. The order, insofar as appealed
from, directed the Erie County Comptroller to distribute surplus funds
to the members of defendant corporation.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs and the motion is denied
in part in accordance with the following Memorandum: Defendant
corporation was formed for the purpose of “acquiring, developing,
operating, leasing and otherwise dealing in real estate, specifically
6024 Main Street, Williamsville, New York.” Defendant executed a
mortgage with respect to that property, which was subsequently
acquired by plaintiff, a member of defendant. Plaintiff commenced the
instant mortgage foreclosure action when defendant defaulted on the
mortgage and, following the foreclosure sale, surplus funds were
deposited with the Erie County Comptroller (Comptroller) by agreement
of the parties. Plaintiff thereafter moved, inter alia, for an order
dissolving defendant corporation and directing the Comptroller to
distribute the surplus funds pursuant to defendant’s Operating
Agreement.

     As limited by its brief, defendant corporation contends that
Supreme Court erred in granting that part of plaintiff’s motion
seeking an order directing the Comptroller to distribute the surplus
funds to the members of defendant corporation in proportion to their
membership interests. We agree. The surplus funds resulting from the
foreclosure sale belong to defendant corporation (see First Fed. Sav.
& Loan Assn. of Rochester v Brown, 78 AD2d 119, 123, appeal dismissed
53 NY2d 939).


Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
