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Carlson v. Cooper

Appellate Division of the Supreme Court of New York, Second Department
Aug 25, 1986
122 A.D.2d 927 (N.Y. App. Div. 1986)

Opinion

August 25, 1986

Appeal from the Supreme Court, Kings County (Bernstein, J., Jones, J.).


Order dated November 20, 1985, affirmed insofar as appealed from, and order dated February 14, 1985, affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

Special Term did not err in dismissing the plaintiff's declaratory judgment action. The proper remedy for relief from a default judgment entered in a mortgage foreclosure action is by motion to vacate the default (see, CPLR 5015 [a]; Levine v Berlin, 46 A.D.2d 902; Tomasello Bros. v Friedman, 57 Misc.2d 817, affd 32 A.D.2d 652). Any issue as to whether the mortgage was given as security for a usurious loan may be addressed in such a motion (see, General Obligations Law § 5-511; Mutual Home Dealers Corp. v Alves, 23 A.D.2d 791, 792, affg 43 Misc.2d 930; National Travis v Gialousakis, 120 Misc.2d 676, 681, affd 99 A.D.2d 800). Finally, we note that the plaintiff's petition to punish the defendants and their attorneys for contempt was properly dismissed. Brown, J.P., Niehoff, Rubin and Kunzeman, JJ., concur.


Summaries of

Carlson v. Cooper

Appellate Division of the Supreme Court of New York, Second Department
Aug 25, 1986
122 A.D.2d 927 (N.Y. App. Div. 1986)
Case details for

Carlson v. Cooper

Case Details

Full title:ANGELINA CARLSON, Appellant, v. SUSAN R. COOPER et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 25, 1986

Citations

122 A.D.2d 927 (N.Y. App. Div. 1986)

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