Bank Leumi Trust Co. v. Sibthorpe

Appeal from an order of Supreme Court, New York County (Burton Sherman, J.), entered January 27, 1989, which, inter alia, granted on default plaintiff’s motion for an order allowing it to withdraw its previous motion for attorneys’ fees, is dismissed as nonappealable, without costs; order of Supreme Court, New York County (Burton Sherman, J.), entered December 19, 1988, which denied defendants’ motion for an order canceling and discharging all mortgages held by plain 326 tiff on real property located at 6 Riverview Terrace, New York, New York, unanimously affirmed, with costs and disbursements. The order appealed from, entered January 27, 1989, was granted on default. The proper remedy for defendants was to move to vacate the default pursuant to CPLR 5015 (Vasquez v Koret, Inc., 151 AD2d 448). The issues raised with respect to defendants’ alleged satisfaction of the mortgages held by the plaintiff in connection with the subject property at 6 Riverview Terrace, New York, New York, were previously decided by this court, and our decision is res judicata (see, Bank Leumi Trust Co. v Sibthorp, 135 AD2d 476; Bank Leumi Trust Co. v Sibthorp, 116 AD2d 451). In addition, defendants have failed to provide adequate factual support with respect to their conclusory allegations that the plaintiff misapplied payments allegedly made after the abovesaid decisions. Concur—Murphy, P. J., Ross, Asch and Wallach, JJ.