Park v Newbank

Park v Newbank 2019 NY Slip Op 00675 Decided on January 31, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 31, 2019
Richter, J.P., Manzanet-Daniels, Tom, Kahn, Singh, JJ.
8265 651048/17

[*1]Michael Park, et al., Plaintiffs-Appellants,

v

Newbank, et al., Defendants-Respondents.

Kimm Law Firm, Bayside (Michael S. Kimm of counsel), for appellants.

Law Offices of Tae H. Whang, LLC, Palisades (Tae H. Whang of counsel), for respondents.

Appeal from order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 22, 2017, which granted defendants' motion for summary judgment dismissing the complaint, deemed appeal from the judgment (CPLR 5501[c]), same court and Justice, entered February 8, 2018, dismissing the complaint, and, as so considered, the judgment unanimously affirmed, with costs.

The loan is not a construction loan, as it was not secured by a mortgage on real property (Lien Law § 2[13], [14]; Juszak v Lily & Don Holding Corp. , 224 AD2d 588, 589 [2d Dept 1996]).

Moreover, Newbank exercised its rights, under the security agreement, by taking possession of the proceeds of the sale of the collateral. Accordingly, plaintiffs failed to establish any damages based on the actions taken by Newbank.

We have considered the parties' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 31, 2019

DEPUTY CLERK