General

Saul S. Le Vine, Respondent, v. Sandra Flynn et al., Appellants, et al., Defendants

231 A.D.2d 555647 N.Y.S.2d 105·New York Supreme Court, Appellate Division·1996·NY

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Opinion

Saul S. Le Vine, Respondent, v Sandra Flynn et al., Appellants, et al., Defendants. [647 NYS2d 105] [MAJORITY] In an action to foreclose a mortgage, the defendants Sandra Flynn and Herbert Lindo appeal from an order of the Supreme Court, Nassau County (Collins, J.), dated October 26, 1995, which, inter alia, granted the plaintiff’s motion for summary judgment and appointed a Referee to ascertain and compute the amount due. Ordered that the order is affirmed, with costs. The appellants specifically waived the defense of usury in a "stipulation and order”, "so ordered” by the court, which settled a prior action to foreclose the mortgage in issue here. Accordingly, the appellants were precluded from raising usury in the instant action (see, Central Funding Co. v Deglin, 67 AD2d 673, affd in part, appeal dismissed in part 48 NY2d 964; see also, Daniel v Daniel, 224 AD2d 573). The appellants’ remaining contentions are without merit. Bracken, J. P., Krausman, Goldstein and Luciano, JJ., concur.