Greater Bright Light Home Care Services, Inc. v. Jeffries-El

5 A.D.3d 350, 772 N.Y.S.2d 535, 2004 N.Y. App. Div. LEXIS 2148

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2004
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, in which the defendant El Equity Corporation counterclaimed, inter alia, to recover damages for breach of contract and conversion, El Equity Corporation appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated August 8, 2002, as granted the motion of the additional counterclaim-defendant Citibank, N.A., pursuant to CPLR 3211 (a) (1) and (7) and CPLR 3212 to dismiss the additional counterclaim insofar as asserted against it. Ordered that the order is affirmed insofar as appealed from, with costs.

This Court has not considered those materials contained in the appellant’s appendix which were not presented to the Supreme Court in connection with the motion to dismiss the additional counterclaim, as they are dehors the record (see Devellis v Lucci, 266 AD2d 180, 181 [1999]; Matter of Anonymous, 182 AD2d 617 [1992]).

The appellant’s additional counterclaim against the defendant Citibank, N.A. (hereinafter the bank), premised on the bank’s failure to recognize the appellant’s adverse claim to an account on its books in the name of another party, was properly dismissed since the appellant failed to procure a restraining order or other appropriate process as required by the Banking Law (see Banking Law § 134 [5]; Ciriello v Eastchester Sav. Bank, 74 Misc 2d 425 [1973], affd 45 AD2d 823 [1974]; Shafran v Shafran, 57 Misc 2d 485 [1968]).

The appellant’s remaining contentions are without merit. S. Miller, J.P., Krausman, Townes and Cozier, JJ., concur.