CARLSON v. COOPER

Order dated November 20, 1985, affirmed insofar as appealed from, and order dated February 14, 1985, affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

Special Term did not err in dismissing the plaintiff's declaratory judgment action. The proper remedy for relief from a default judgment entered in a mortgage foreclosure action is by motion to vacate the default (see, CPLR 5015 [a]; Levine v Berlin, 46 A.D.2d 902; Tomasello Bros. v Friedman, 57 Misc.2d 817, affd 32 A.D.2d 652). Any issue as to whether the mortgage was given as security for a usurious loan may be addressed in such a motion (see, General Obligations Law § 5-511; Mutual Home Dealers Corp. v Alves, 23 A.D.2d 791, 792, affg 43 Misc.2d 930; National Travis v Gialousakis, 120 Misc.2d 676, 681, affd 99 A.D.2d 800). Finally, we note that the plaintiff's petition to punish the defendants and their attorneys for contempt was properly dismissed. Brown, J.P., Niehoff, Rubin and Kunzeman, JJ., concur.