Marcus Dairy, Inc. v. Jacene Realty Corp.

Appellate Division of the Supreme Court of New York

Marcus Dairy, Inc. v. Jacene Realty Corp.

193 A.D.2d 653, 597 N.Y.S.2d 465, 1993 N.Y. App. Div. LEXIS 4705

Appellate Division of the Supreme Court of the State of New York·Decided May 10, 1993·Published·Cited by 5 cases

Opinion

In an action to foreclose a mortgage, the defendant Jacene Realty Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Wood, J.), dated January 28, 1991, as denied its cross motion to dismiss the action on the ground that another action is pending for the same relief.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellant is guarantor of the payment of two promissory notes issued by Freedom Foods, Inc., and assigned to the plaintiff. The appellant secured the guarantee with a mortgage on the subject property in Mount Vernon, Westchester County. The plaintiff commenced this action to foreclose on the mortgage, alleging that Freedom Foods had defaulted on the notes.

The Supreme Court did not improvidently exercise its discretion in denying the appellant’s cross motion to dismiss pursuant to CPLR 3211 (a) (4). The appellant is not a party to the plaintiff’s Connecticut action against Freedom Foods to recover on the promissory notes (see, Breiterman v Elmar Props., 123 AD2d 735, 737). In addition, although the appellant’s liability as guarantor is dependent on Freedom Foods’ default on the notes, the relief sought in this action, foreclosure on the mortgage, is distinct from recovery on the notes, and, indeed, is not available to the plaintiff in the Connecticut action (see, CPLR 507; Kent Dev. Co. v Liccione, 37 NY2d 899, 901).

We have considered the appellant’s remaining contentions [654]*654and find them to be without merit. Thompson, J. P., Eiber, Ritter and Joy, JJ., concur.

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In an action to foreclose a mortgage, the defendant Jacene Realty Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Wood, J.), dated January 28, 1991, as denied its cross motion to dismiss the action on the ground that another action is pending for the same relief.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellant is guarantor of the payment of two promissory notes issued by Freedom Foods, Inc., and assigned to the plaintiff. The appellant secured the guarantee with a mortgage on the subject property in Mount Vernon, Westchester County. The plaintiff commenced this action to foreclose on the mortgage, alleging that Freedom Foods had defaulted on the notes.

The Supreme Court did not improvidently exercise its discretion in denying the appellant’s cross motion to dismiss pursuant to CPLR 3211 (a) (4). The appellant is not a party to the plaintiff’s Connecticut action against Freedom Foods to recover on the promissory notes (see, Breiterman v Elmar Props., 123 AD2d 735, 737). In addition, although the appellant’s liability as guarantor is dependent on Freedom Foods’ default on the notes, the relief sought in this action, foreclosure on the mortgage, is distinct from recovery on the notes, and, indeed, is not available to the plaintiff in the Connecticut action (see, CPLR 507; Kent Dev. Co. v Liccione, 37 NY2d 899, 901).

We have considered the appellant’s remaining contentions [654]*654and find them to be without merit. Thompson, J. P., Eiber, Ritter and Joy, JJ., concur.

Marcus Dairy, Inc. v. Jacene Realty Corp., 193 A.D.2d 653, 597 N.Y.S.2d 465, 1993 N.Y. App. Div. LEXIS 4705 (N.Y. Ct. App. 1993).

Pincite

193 A.D.2d 653 (Marcus Dairy, Inc. v. Jacene Realty Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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