MITTELMAN v. GE CAPITAL MORTGAGE SERVICES INC (1999)

In an action to recover damages for breach of contract, the plaintiffs appeal from (1) an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated June 15, 1998, which denied their motion to amend the complaint, and (2) an order of the same court, entered December 30, 1998, which denied their motion for partial summary judgment and granted the respondents' respective cross motions to dismiss the complaint.

ORDERED that the orders are affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

 The court properly denied the plaintiffs' motion to amend the complaint to convert this action into a class action because they failed to meet the prerequisites therefor (see, CPLR 901[a];  Askey v. Occidental Chem. Corp., 102 A.D.2d 130, 137, 477 N.Y.S.2d 242;  Scott v. Prudential Ins. Co. of Amer., 80 A.D.2d 746, 747–748, 437 N.Y.S.2d 180).   In addition, the plaintiffs Zissy and Ingnaz Mittelman are barred by the doctrine of res judicata from bringing this plenary action against the defendants GE Capital Mortgage Services, Inc., and Travelers Mortgage Services, Inc., since the identical claims alleging, inter alia, trespass, defamation, breach of contract, and negligence against those defendants, raised in the Mittelmans' counterclaims in a prior foreclosure action, were dismissed (see, GE Capital Mtge. Servs. v. Mittelman, 238 A.D.2d 471, 656 N.Y.S.2d 645;  see also, Cherico v. Bank of N.Y., 211 A.D.2d 961, 621 N.Y.S.2d 235).

In any event, the court properly dismissed the complaint of all of the plaintiffs insofar as asserted against the respondents for failure to state a cause of action (see, CPLR 3016[a];  Forken v. CIGNA Corp., 234 A.D.2d 992, 651 N.Y.S.2d 824;  Allen v. Vuley, 223 A.D.2d 868, 635 N.Y.S.2d 821).

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.