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MITTELMAN v. GE CAPITAL MORTGAGE SERVICES

Appellate Division of the Supreme Court of New York, Second Department
Oct 4, 1999
265 A.D.2d 311 (N.Y. App. Div. 1999)

Opinion

Argued June 15, 1999

October 4, 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.).


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; Scott v. Prudential Ins. Co. of Amer., 80 A.D.2d 746, 747-748). 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; see also, Cherico v. Bank of N.Y., 211 A.D.2d 961).

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; Allen v. Vuley, 223 A.D.2d 868).

The plaintiffs' remaining contentions are without merit.

THOMPSON, J.P., ALTMAN, FEUERSTEIN, and SMITH, JJ., concur.


Summaries of

MITTELMAN v. GE CAPITAL MORTGAGE SERVICES

Appellate Division of the Supreme Court of New York, Second Department
Oct 4, 1999
265 A.D.2d 311 (N.Y. App. Div. 1999)
Case details for

MITTELMAN v. GE CAPITAL MORTGAGE SERVICES

Case Details

Full title:ZISSY MITTELMAN, et al., appellants, v. GE CAPITAL MORTGAGE SERVICES…

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

Date published: Oct 4, 1999

Citations

265 A.D.2d 311 (N.Y. App. Div. 1999)
696 N.Y.S.2d 222

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