In Marcus Dairy, Inc., v. Jacene Realty Corp., 298 AD2d 366, 751 N.Y.S.2d 237 (2d Dept 2002), Jacene gave a mortgage to the Marcus Dairy, Inc. ("Dairy") and later defaulted. The Dairy instituted a mortgage foreclosure action. The borrower defended, resulting in dismissal of the complaint, vacating of the lis pendens and a directive that the mortgage be cancelled and discharged of record - all quite a loss for the foreclosing lender. Although the judgment directing all this was entered in the county clerk's office, it was never recorded in the Division of Land Records and so the mortgage was not cancelled of record (even though it was what the court had decreed). Plaintiff Dairy, the mortgagee, appealed from the unpalatable judgment and sought a stay of the discharge of its mortgage. The stay was denied. Borrower Jacene later conveyed the property to Melissa Thomas, who then obtained a mortgage from a new lender. The title insurance company for the new lender found the Dairy's mortgage open in the Division of Land Records, but was willing to insure the mortgage despite notice of Dairy's prior lien. On appeal, the court reversed the initial judgment and reinstated the earlier Dairy mortgage resulting in a new foreclosure action by Dairy wherein the new lender was named a party defendant as a result of its role as a subsequent mortgagee. In Marcus Dairy, Inc., the Second Department held that: Here, the plaintiff Dairy would have no effective remedy if it were to lose its priority as the mortgagee whose mortgage was first recorded. The appellant, on the other hand, has a remedy against its title insurance company which insured title without excepting the plaintiff's mortgage. Further, the plaintiff did not fail to seek a stay, but, rather, its application was denied. Consequently, the plaintiff is entitled to restoration of the rights lost by the judgment which judgment was ultimately reversed. (298 AD2d 366, 368, 751 N.Y.S.2d 237 [2d Dept 2002]) In Marcus Dairy, Inc., the Second Department discussed the equities of ordering restitution and noted that the bank who was losing its mortgage "has a remedy against its title insurance company."