Opinion
July 13, 1998
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the motion is denied, and upon searching the record, summary judgment is granted in favor of the defendants Anthony Soraci and Window Doctor of Staten Island, Inc., the complaint is dismissed insofar as it is asserted against them, and the action against the remaining defendants is severed.
This appeal, originally heard in November 1994, was held in abeyance pending the determination of a petition in bankruptcy filed by the defendant Anthony Soraci. The parties failed to notify this Court that the bankruptcy proceeding was concluded.
The plaintiff has pursued a separate action on the note which was secured by the instant mortgage against the mortgagor Window Doctor of Staten Island, Inc., and a guarantor on the note, Anthony Soraci. In that action he recovered a money judgment against Window Doctor of Staten Island, Inc., and Soraci ( see, Simms v. Window Doctor, 252 A.D.2d 522 [decided herewith]). We agree with the appellants that the present action may not properly be maintained because "execution against the property of the defendant [mortgagors] has [not] been issued * * * and returned wholly or partly unsatisfied" (RPAPL 1301; see, Marine Midland Bank v. Lake Huntington Dev. Group, 185 A.D.2d 395, 396).
Bracken, J. P., Rosenblatt, Friedmann and Goldstein, JJ., concur.