KTM Partnership-I v. 160 West 86th Street Partners

169 A.D.2d 462, 564 N.Y.S.2d 159, 1991 N.Y. App. Div. LEXIS 363

Opinion

Order and judgment (one paper), Supreme Court, New York County (Harold Baer, Jr., J.), entered June 12, 1989, which, inter alia, granted plaintiff a final judgment of foreclosure and sale and adjudged that defendants were foreclosed from claiming any right, claim, title or interest in the subject property, unanimously affirmed, with costs.

This is an action to foreclose on real property located at 160 West 86th Street, New York, New York. 160 West 86th Street Partners purchased the property from defendant Sarasy. Sarasy took back a $1 million purchase-money mortgage which he later assigned to Metropolis Associates I. The assignment was not recorded until after this action was commenced and a notice of pendency was filed. 160 West 86th Street was also granted a $3.1 million mortgage loan by plaintiff at the same time the purchase-money mortgage was created.

In this action to foreclose a mortgage, a prior interlocutory appeal by defendant-appellant Lewis Sarasy was dismissed on the grounds that defendant-appellant was not aggrieved, and that the appeal was untimely. Sarasy cannot now raise issues which were previously adjudicated or could have been adjudicated by this court in the interlocutory appeal. (See, Bray v Cox, 38 NY2d 350.) Moreover, Sarasy has no standing to appeal since he has assigned his entire interest in the purchase-money mortgage and is thus not an aggrieved party. Finally, the issues now raised by Sarasy are identical to those already raised by Metropolis, the real party in interest, which have been considered and rejected by this court (Columbia Fed. Sav. Bank v 160 W. 86th St. Partners, 153 AD2d 1014). Concur—Murphy, P. J., Milonas, Kupferman and Rubin, JJ.