Chemical Bank v. Colonna , 618 N.Y.S.2d 243 ( 1994 )

In a mortgage foreclosure action, the defendant Dolores Colonna appeals from an order of the Supreme Court, Putnam County (Hickman, J.), dated February 16, 1993, which granted the plaintiff’s motion for partial summary judgment dismissing her first affirmative defense and counterclaim.

Ordered that the order is affirmed, with costs.

The Supreme Court correctly dismissed the appellant Dolores Colonna’s counterclaim for failure to comply with Business Corporation Law § 909. While the statute requires, inter alia, that approval of the board of directors and two-thirds of the shareholders is necessary for the conveyance of all or substantially all of the assets of a corporation, it further provides that a claim to set aside a conveyance for lack of such approval "may not be maintained * * * unless * * * commenced within one year after such conveyance * * * is recorded” (Business Corporation Law § 909 [c]). Inasmuch as the challenged conveyance in this case was recorded more than one year prior to the assertion of the counterclaim, the appellant failed to comply with the statute.

Moreover, we agree with the Supreme Court that the respondent has established its status as a bona fide mortgagee for value as a matter of law (see, Real Property Law § 266).

We have considered the appellant’s remaining contentions and find them to be without merit. Sullivan, J. P., Balletta, Rosenblatt and Florio, JJ., concur.