Khurana v. Cutrona

267 A.D.2d 283, 699 N.Y.S.2d 900, 1999 N.Y. App. Div. LEXIS 12943

Opinion

—In an action, inter alia, to compel a mortgage foreclosure sale, the plaintiff appeals from stated portions of an order of the Supreme Court, Kings County (I. Aronin, J.), dated June 25, 1998, which, among other things, granted the cross motion of the defendants Marie Bazile, s/h/a Marie Darcelin and Greenpoint Bank for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff was the successful bidder at a mortgage foreclosure sale. Although he signed the memorandum of sale and made a 10% deposit on the purchase price, the sale was never consummated. He thereafter commenced this action seeking, inter alia, specific performance. However, the plaintiff’s remedy is an application before the court in the underlying foreclosure action, not a plenary action (see, Lane v Chantilly Corp., 251 NY 435; Goodwin v Simonson, 74 NY 133; National Bank v Van Keuren, 184 AD2d 92; Jorgensen v Endicott Trust Co., 100 AD2d 647; State Bank v Wilchinsky, 128 App Div 485; Burton v Linn, 21 App Div 609; 3 Bergman, New York Mortgage Foreclosures § 30.05 [3]). Accordingly, the Supreme Court properly granted the respondents’ cross motion for summary judgment dismissing the complaint insofar as asserted against them.