Murray Hill Investments, Inc. v. Adas Yereim, Inc.

In three consolidated actions for a judgment declaring the parties’ rights under a note and mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (G. Aronin, J.), dated December 8,1994, which granted the defendants’ motion to dismiss the complaints and cancelled notices of pendency filed in connection with each complaint. Ordered that the order is affirmed, with costs. The declaratory judgment actions were properly dismissed. The relief sought in each of the declaratory judgment actions, i.e., a declaration as to the validity of the mortgage note, could be determined in the separate action, which was pending, to 603 recover on the note (see, Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert denied 464 US 993; Top-All Varieties v Raj Dev. Co., 173 AD2d 604). As for a declaration as to the validity of the mortgage, the Supreme Court did not improvidently exercise its discretion in dismissing the declaratory judgment actions when the plaintiff had an adequate alternative remedy, i.e., a mortgage foreclosure proceeding (see, Matter of Morgenthau v Erlbaum, supra). Moreover, the Supreme Court correctly determined that the notices of pendency were improperly filed in these actions (see, CPLR 6501; 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313; FB Tr. Rd. Corp. v DRT Constr. Co., 217 AD2d 1001; Freidus v Sardelli, 192 AD2d 578). Rosenblatt, J. P., Copertino, Altman and Friedmann, JJ., concur.