Simms v. Soraci

252 A.D.2d 519, 675 N.Y.S.2d 295, 1998 N.Y. App. Div. LEXIS 8288

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1998
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendants Anthony Soraci and Window Doctor of Staten Island, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Leone, J.), entered July 2, 1992, as granted the plaintiffs motion for summary judgment. Justice Rosenblatt has been substituted for the late Justice Lawrence (22 NYCRR 670.1 [c]).

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 AD2d 520 [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 [1]; see, Marine Midland Bank v Lake Huntington Dev. Group, 185 AD2d 395, 396). Bracken, J. P., Rosenblatt, Friedmann and Goldstein, JJ., concur.