| Merchants Bank of Ind. v 19 W 55 LLC |
| 2024 NY Slip Op 02017 |
| Decided on April 16, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Jacobs P.C., New York (Lewis S. Fischbein of counsel), for appellants.
Knuckles & Manfro LLP, Elmsford (John E. Brigandi of counsel), for respondent.
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 AD3d 929, 930 [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 AD3d 649, 651 [2d Dept 2022]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 16, 2024