Opinion
04-16-2024
MERCHANTS BANK OF INDIANA, Plaintiff–Respondent, v. 19 W 55 LLC et al., Defendants–Appellants, The Allure Group, LLC, et al., Defendants.
Jacobs P.C., New York (Lewis S. Fischbein of counsel), for appellants. Knuckles & Manfro LLP, Elmsford (John E. Brigandi of counsel), for respondent.
Jacobs P.C., New York (Lewis S. Fischbein of counsel), for appellants.
Knuckles & Manfro LLP, Elmsford (John E. Brigandi of counsel), for respondent.
Kern, J.P., Singh, Scarpulla, Mendez, Higgitt, JJ.
Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered November 13, 2023, which denied defendants 19 W 55 LLC and Abraham Leifer’s motion to dismiss the amended complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, with costs.
RPAPL 1301(3) does not warrant dismissal of the complaint because plaintiff seeks to foreclose on the mortgage while also preserving its right to request a deficiency judgment (see Aurora Loan Servs., LLC v. Lopa, 88 A.D.3d 929, 930, 932 N.Y.S.2d 496 [2d Dept. 2011]). Nor have moving defendants demonstrated prejudice by plaintiff’s alleged failure to comply with RPAPL 1303(3), as they are not in a position of having to defend against more than one lawsuit to recover the same mortgage debt (see HSBC Bank USA N.A v. Kading, 204 A.D.3d 649, 651, 165 N.Y.S.3d 595 [2d Dept. 2022]).