Opinion
July 15, 1996
Appeal from the Supreme Court, Nassau County (Yachnin, J.).
Ordered that the order is modified, on the law, with one bill of costs to the defendants appearing separately and filing separate briefs, by adding a provision thereto, which, upon searching the record, grants summary judgment to the defendants dismissing the complaint.
The plaintiff's motion which was, in effect, for summary judgment, was properly denied, since the underlying action was improper. Rather than commence a plenary action to vacate the judgment of foreclosure and sale, the plaintiff should have made a motion to vacate in the foreclosure action (see, CPLR 5015; James v. Shave, 97 A.D.2d 927, affd 62 N.Y.2d 712). Since the underlying action is improper, we search the record and grant summary judgment in favor of the defendants dismissing the complaint (CPLR 3212 [b]). Mangano, P.J., Bracken, Copertino and Pizzuto, JJ., concur.