Choi v. Korea First Bank

244 A.D.2d 236, 664 N.Y.S.2d 437, 1997 N.Y. App. Div. LEXIS 11724

Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered June 21, 1996, which granted defendant’s motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

The documentary evidence establishes that the second, so-called Disputed Note was the obligation of Manhattan, not Kornew, which defendant could properly enforce by foreclosing on the Manhattan mortgage containing a “dragnet clause” making it applicable to future advances (State Bank v Fioravanti, 51 NY2d 638, 645). Under these circumstances, even assuming that defendant altered the second mortgage to include a clause subordinating it to the first mortgage, such alteration did not increase plaintiffs’ liability and was therefore immaterial (see, Phalanx Corp. v Philite Radiant, 19 AD2d 515; Megaris Furs v Gimbel Bros., 172 AD2d 209, 212-213). Nor do plaintiffs’ allegations show that defendant’s alleged deceptive acts and practices were of a recurring nature and harmful to the public at large, necessary to their claim under General Business Law § 349 (see, United Knitwear Co. v North Sea Ins. Co., 203 AD2d 358). We have considered plaintiffs’ other arguments and find them to be without merit. Concur—Murphy, P. J., Milonas, Ellerin, Rubin and Tom, JJ.