Opinion
2014-01884, Index No. 502895/12.
09-30-2015
VNB NEW YORK CORP., appellant, v. Tibor J. PASKESZ, also known as Jacob Paskesz, et al., respondents, et al., defendants.
Zeichner Ellman & Krause LLP, New York, N.Y. (Steven S. Rand and J. David Morrissy of counsel), for appellant. Backenroth, Frankel & Krinsky, LLP, New York, N.Y. (Scott Krinsky of counsel), for respondents.
Zeichner Ellman & Krause LLP, New York, N.Y. (Steven S. Rand and J. David Morrissy of counsel), for appellant.
Backenroth, Frankel & Krinsky, LLP, New York, N.Y. (Scott Krinsky of counsel), for respondents.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Opinion In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), dated October 29, 2013, as granted that branch of the defendants' cross motion which was to dismiss the complaint pursuant to CPLR 3211(a) for failure to comply with RPAPL 1301 and, in effect, denied, as academic, its motion, inter alia, for summary judgment on the complaint insofar as asserted against Tibor J. Paskesz, also known as Jacob Paskesz, and Eva Paskesz.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants' cross motion which was to dismiss the complaint pursuant to CPLR 3211(a) for failure to comply with RPAPL 1301 is denied, and the matter is remitted to the Supreme Court, Kings County, for consideration of the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against Tibor J. Paskesz, also known as Jacob Paskesz, and Eva Paskesz.
Pursuant to RPAPL 1301, “[t]he holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but must only elect one of these alternate remedies” (Gizzi v. Hall, 309 A.D.2d 1140, 1141, 767 N.Y.S.2d 469 ; see
Aurora Loan Servs., LLC v. Lopa, 88 A.D.3d 929, 930, 932 N.Y.S.2d 496 ). “The purpose of the statute is to avoid multiple lawsuits to recover the same mortgage debt” (Aurora Loan Servs., LLC v. Lopa, 88 A.D.3d at 930, 932 N.Y.S.2d 496 ). Courts have recognized that “RPAPL 1301 should be strictly construed since it is in derogation of a plaintiff's common-law right to pursue the alternate remedies of foreclosure and recovery of the mortgage debt at the same time” (Dollar Dry Dock Bank v. Piping Rock Bldrs., 181 A.D.2d 709, 710, 581 N.Y.S.2d 361 ; see Hometown Bank of Hudson Val. v. Colucci, 127 A.D.3d 702, 7 N.Y.S.3d 291 ; Hometown Bank of Hudson Val. v. Belardinelli, 127 A.D.3d 700, 7 N.Y.S.3d 289 ; Valley Sav. Bank v. Rose, 228 A.D.2d 666, 646 N.Y.S.2d 349 ).
RPAPL 1301(1) provides that “[w]here final judgment for the plaintiff has been rendered in an action to recover any part of the mortgage debt, an action shall not be commenced or maintained to foreclose the mortgage, unless an execution against the property of the defendant has been issued ... and has been returned wholly or partly unsatisfied” (see Sabbatini v. Galati, 14 A.D.3d 547, 548, 789 N.Y.S.2d 504 ). Stated another way, an action for foreclosure cannot be maintained where the plaintiff has previously pursued a separate action on the note and recovered a money judgment against the defendant which has not been satisfied (see Simms v. Soraci, 252 A.D.2d 519, 675 N.Y.S.2d 295 ; see also Marine Midland Bank v. Lake Huntington Dev. Group, 185 A.D.2d 395, 585 N.Y.S.2d 836 ).
RPAPL 1301(3), on the other hand, “prohibits a party from commencing an action at law to recover any part of the mortgage debt while the foreclosure proceeding is pending or has not reached final judgment, without leave of the court in which the foreclosure action was brought” (First Nationwide Bank v. Brookhaven Realty Assoc., 223 A.D.2d 618, 622, 637 N.Y.S.2d 418 ; see RPAPL 1301[3] ; Marine Midland Bank v. Lake Huntington Dev. Group, 185 A.D.2d at 396, 585 N.Y.S.2d 836 ).
Here, the plaintiff commenced an action, inter alia, for replevin first and, thereafter, commenced this foreclosure action. As such, RPAPL 1301(1), and not RPAPL 1301(3), applies to this matter. However, since no final judgment has been entered in the replevin action, RPAPL 1301(1), by its own terms, does not preclude the commencement of this foreclosure action against the defendants (see Marine Midland Bank v. Lake Huntington Dev. Group, 185 A.D.2d at 396, 585 N.Y.S.2d 836 ; see also Sabbatini v. Galati, 14 A.D.3d at 548, 789 N.Y.S.2d 504 ; Simms v. Soraci, 252 A.D.2d at 520, 675 N.Y.S.2d 295 ).
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court erred in granting that branch of the defendants' cross motion which was to dismiss the complaint pursuant to CPLR 3211(a) for failure to comply with RPAPL 1301.
The Supreme Court, in effect, denied, as academic, the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the respondents. In light of our determination, the Supreme Court must consider the motion upon remittal.