CASTIGLIA v. COLONIAL PINES, INC

Order unanimously affirmed with costs. Memorandum: Plaintiff is attempting to set aside a judgment of foreclosure based upon an unrecorded deed conveying part of the premises to him. It is undisputed that plaintiff never recorded that purported deed at any time prior to defendants' filing their notice of pendency (see, CPLR 6501) and commencing the foreclosure action. Plaintiff's complaint was properly dismissed as barred by the principles of res judicata since it asserted the same claims previously resolved in a prior action (see, Ryan v New York Tel. Co., 62 N.Y.2d 494, 500; Shanley v Callanan Indus., 54 N.Y.2d 52, 55; Davie v Dwyer, 155 A.D.2d 921).

Supreme Court properly granted defendants' motion to dismiss plaintiff's action to set aside the judgment and denied plaintiff's cross motion for summary judgment and to compel discovery. We note that no court has declared the parties' interest in the property (see, RPAPL 1521; Keller v Village of Castleton-on-Hudson, 173 A.D.2d 979; Orrino v Norbon Homes, 35 A.D.2d 732). Since this matter has been dismissed, that issue is not before us. If it were, we would declare that defendants acquired lawful right, title and interest to the premises by virtue of the foreclosure sale and Referee's deed, and that plaintiff has no right, title or interest in the premises.