Citizens Bank v. C.L.R. Brooklyn Realty Corp.

5 A.D.3d 528, 772 N.Y.S.2d 870, 2004 N.Y. App. Div. LEXIS 2681

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 2004
• Status: Published

Opinion

In an action, inter alia, to foreclose a mortgage, the defendants C.L.R. Brooklyn Realty Corp., Leonard Peter Smith, and Pearl Smith appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated November 19, 2002, which denied their motions, among other things, to vacate a judgment of foreclosure and sale dated July 13, 1994, and to cancel a referee’s deed issued on July 12, 1995, and strike it from the public record.

Ordered that the order is affirmed, with costs.

The Supreme Court correctly determined that the appellants’ motions, inter alia, to vacate the judgment of foreclosure and sale and to cancel the referee’s deed were barred by the doctrine of res judicata because the claims contained therein could have or should have been raised on the defendants’ first motion, brought in 1995, to vacate the judgment of foreclosure and sale (see O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; Coliseum Towers Assoc. v County of Nassau, 217 AD2d 387 [1996]).

The appellants’ remaining contentions are without merit. Altman, J.P., S. Miller, Luciano and Rivera, JJ., concur.