Ghartey v. Bank of Baltimore

243 A.D.2d 538, 665 N.Y.S.2d 298, 1997 N.Y. App. Div. LEXIS 9796

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 1997
• Status: Published

Opinion

In an action to set aside a foreclosure sale, the plaintiff Alfred Ghartey appeals from two orders of the Supreme Court, Queens County (Durante, J.), both dated September 13, 1996, which respectively (1) granted the motion of the defendant Berkeley Federal Bank and Trust to dismiss the complaint insofar as asserted against it, and (2) denied the plaintiffs’ motion for a preliminary injunction against the defendant Berkeley Federal Bank and Trust.

Ordered that the order dated September 13, 1996, which granted the motion by Berkeley Federal Bank and Trust and dismissed the complaint is affirmed; and it is further,

Ordered that the appeal from the order dated September 13, 1996, which denied the plaintiffs’ motion for a preliminary injunction is dismissed as academic, and it is further,

Ordered that the respondent is awarded one bill of costs.

The plaintiff, Alfred Ghartey, is barred from raising in this action any claims which could have been raised in the foreclosure action (see, O’Brien v City of Syracuse, 54 NY2d 353, 357; Koether v Generalow, 213 AD2d 379; Cherico v Bank of N. Y., 211 AD2d 961). Furthermore, the conclusory allegations in the complaint are without factual support (see, M.J. & K. Co. v Matthew Bender & Co., 220 AD2d 488) and are insufficient to establish any viable cause of action (see, Leon v Martinez, 84 NY2d 83, 87-88). Accordingly, the Supreme Court properly granted the motion to dismiss the complaint.

In view of our determination, the appeal from the order which denied the plaintiffs’ request for a preliminary injunction is dismissed as academic. O’Brien, J. P., Santucci, Joy and Altman, JJ., concur.