Carlson v. Cooper

122 A.D.2d 927, 506 N.Y.S.2d 82, 1986 N.Y. App. Div. LEXIS 59423

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 25, 1986
• Status: Published

Opinion

— In an action for a judgment declaring that a mortgage given by the plaintiff to the defendants Susan and Samuel Cooper is void as usurious and fraudulent, the plaintiff appeals from (1) so much of an order of the Supreme Court, Kings County (Bernstein, J.), dated November 20, 1985, as denied her motion for a temporary injunction and granted the defendants’ cross motions to dismiss the complaint, and (2) an order of the same court (Jones, J.), dated February 14, 1985, which dismissed the plaintiff’s petition to punish the defendants and their attorneys for contempt of court.

Order dated November 20, 1985, affirmed insofar as appealed from, and order dated February 14, 1985, affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

Special Term did not err in dismissing the plaintiff’s declaratory judgment action. The proper remedy for relief from a default judgment entered in a mortgage foreclosure action is by motion to vacate the default (see, CPLR 5015 [a]; Levine v Berlin, 46 AD2d 902; Tomasello Bros. v Friedman, 57 Misc 2d 817, affd 32 AD2d 652). Any issue as to whether the mortgage was given as security for a usurious loan may be addressed in such a motion (see, General Obligations Law § 5-511; Mutual Home Dealers Corp. v Alves, 23 AD2d 791, 792, affg 43 Misc 2d 930; National Travis v Gialousakis, 120 Misc 2d 676, 681, affd 99 AD2d 800). Finally, we note that the plaintiff’s petition to punish the defendants and their attorneys for contempt was properly dismissed. Brown, J. P., Niehoff, Rubin and Kunzeman, JJ., concur.