
    KVR Realties, Inc., Respondent, v Treasure Star, Inc., Appellant, et al., Defendants.
    Decided January 6, 1983
    
      APPEARANCES OF COUNSEL
    
      Charles M. Newman for appellant.
    
      Philip H. Schaeffer for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. The subordination and nondisturbance agreement between the plaintiff mortgagee and the tenant effectively rendered the tenant’s rights to possession under the lease superior to plaintiff’s rights under the mortgage. Thus the tenant need not be joined as a necessary party to this foreclosure action under RPAPL 1311. Pursuant to the terms of the lease, appellant expressly agreed that the tenant would be free at any time to obtain a nondisturbance agreement from any mortgagees, and therefore it cannot be said that appellant’s rights as landlord were unfairly modified by the unilateral action of the tenant (cf. Seely’s Son v Fulton-Edison, 52 AD2d 575).

Finally, no disputed issues of fact are presented which would require a trial and, accordingly, the award of summary judgment was appropriate.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Fuchsberg concur; Judges Meyer and Simons taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, and question certified answered in the affirmative in a memorandum.  