AL REAL ESTATE INC v. GIBSON

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Supreme Court, Appellate Division, Second Department, New York.

AL'S REAL ESTATE, INC., appellant, v. Maurice GIBSON, et al., respondents, et al., defendants.

Decided: June 26, 2007

A. GAIL PRUDENTI, P.J., FRED T. SANTUCCI, JOSEPH COVELLO, and EDWARD D. CARNI, JJ. Avery J. Gross, Staten Island, N.Y., for appellant. Edward S. Kanbar, New York, N.Y., for respondents.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated September 8, 2006, which granted the motion of the defendants Maurice Gibson and International Dynamics, Inc., for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

Under the circumstances of this case, the plaintiff's failure to include one of the two parcels of land identified in the underlying mortgage when it commenced a prior foreclosure action in 1991 resulted in “abandonment of the lien on the portion omitted” (Bodner v. Brickner, 29 A.D.2d 441, 446, 288 N.Y.S.2d 342).   Thus, the plaintiff could not maintain the instant foreclosure action with respect to the omitted parcel (see State Sav. v. Parc Vendome Assoc., 223 A.D.2d 464, 637 N.Y.S.2d 365;  Bankers Trust Co. v. G.H. Equities, Inc., 57 A.D.2d 601, 394 N.Y.S.2d 30). In any event, the plaintiff's execution of a satisfaction of the subject mortgage in 1999 barred this foreclosure action, which was not commenced until 2001 (see CPLR 3211[a] [1], [5];  Regions Bank v. Campbell, 291 A.D.2d 437, 737 N.Y.S.2d 636).

Accordingly, the respondents established their entitlement to judgment as a matter of law dismissing the complaint and the plaintiff failed to raise a triable issue of fact in opposition thereto.   Consequently, the Supreme Court properly granted the motion for summary judgment dismissing the complaint insofar as asserted against the respondents (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

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