Gelb v. Hatton

128 A.D.2d 501, 512 N.Y.S.2d 431, 1987 N.Y. App. Div. LEXIS 44194

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1987
• Status: Published

Opinion

In an action to foreclose a mortgage on real property, the defendant Hatton appeals from an order of the Supreme Court, Kings County (Scholnick, J.), dated March 3, 1986, which, inter alia, denied her motion to dismiss the plaintiffs’ amended complaint as against her, dismissed her first, second and third affirmative defenses and dismissed her first, second and third counterclaims.

Ordered that the order is affirmed, with costs.

We agree with the determination of Special Term that the doctrines of res judicata and collateral estoppel do not operate to bar the present action which solely involves subsequent defaults in payments due under the terms of a mortgage, and which issues were never litigated in prior actions. Accordingly, the appellant’s motion to dismiss the amended complaint as against her was properly denied (see, CPLR 3211 [a] [5]). We further find that Special Term did not err in dismissing the affirmative defenses and counterclaims raised in the appellant’s amended answer which were grounded in the theories of res judicata and collateral estoppel. Mangano, J. P., Bracken, Brown and Spatt, JJ., concur.