You are here: / / ONCE PLAINTIFF’S FORECLOSURE ACTION WAS DISCONTINUED BY STIPULATION,...
, , ,

ONCE PLAINTIFF’S FORECLOSURE ACTION WAS DISCONTINUED BY STIPULATION, THE FORECLOSURE COMPLAINT COULD BE AMENDED TO SEEK RECOVERY ON THE NOTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff, after its foreclosure action was discontinued, could amend the foreclosure complaint to seek recovery on the note:

“‘RPAPL 1301(3) . . . 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'” ( … see RPAPL 1301[3]). Conversely, “‘where a foreclosure action is no longer pending and did not result in a judgment in the plaintiff’s favor, the plaintiff is not precluded from commencing a separate action without leave of the court'” … .

Here, pursuant to the so-ordered stipulation and the plaintiff’s release of the mortgage, the cause of action to foreclose the mortgage was, in effect, discontinued, without the entry of any judgment in the plaintiff’s favor … . Since the cause of action to foreclose the mortgage was no longer pending, the plaintiff was not precluded from seeking to recover on the note by RPAPL 1301(3), “‘a statute which must be strictly construed'” … .

Furthermore, “there is no reason the plaintiff could not seek such relief by seeking leave to amend its complaint, rather than by commencing a new action” … . Stewart Tit. Ins. Co. v Zaltsman, 2022 NY Slip Op 05107, Second Dept 8-31-22

Practice Point: Here the foreclosure action was discontinued and plaintiff was allowed to amend the foreclosure complaint to seek recovery on the note.

 

You might also like
DEFENDANTS’ MOTION TO DISQUALIFY PLAINTFF’S ATTORNEY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED.
No Evidence Release Invalidated by Fraud or Duress
PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT.
LIMITED LIABILITY COMPANY WHICH DID NOT COMPLY WITH STATUTORY PUBLICATION REQUIREMENT CANNOT BRING A COURT ACTION.
THE NEGOTIATED PLEA REQUIRED NO POST-PLEA ARRESTS; DEFENDANT WAS ARRESTED AFTER THE PLEA BUT THE PROCEEDINGS WERE DISMISSED ON SPEEDY TRIAL GROUNDS AND THE RECORDS SEALED; THE POST-PLEA ARRESTS WERE THEREFORE A NULLITY AND SHOULD NOT HAVE BEEN CONSIDERED BY THE SENTENCING JUDGE (SECOND DEPT). ​
THE DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE THE FLOWER POT OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; THE CIRCUMSTANCES OF THE ACCIDENT RAISED A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT).
DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT FINDING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AWARDING NO DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING OR FUTURE LOST WAGES SHOULD HAVE BEEN GRANTED, PLAINTIFF ALLEGED HER CHILD WAS INJURED IN UTERO (SECOND DEPT).
Questions of Fact Raised About Whether Student Assumed the Risk of Injury from Indoor Soccer Practice–Relevant Law Discussed In Some Depth

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT RAISE A QUESTION OF FACT... EVIDENCE OF COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS OF...