Wand v. Saleh

Appellate Division of the Supreme Court of New York

Wand v. Saleh

218 A.D.2d 647, 630 N.Y.S.2d 367, 1995 N.Y. App. Div. LEXIS 8310

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 7, 1995

StatusPublished

Cited by5 cases

This text of 218 A.D.2d 647 (Wand v. Saleh) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wand v. Saleh, 218 A.D.2d 647, 630 N.Y.S.2d 367, 1995 N.Y. App. Div. LEXIS 8310 (N.Y. Ct. App. 1995).

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Opinion

—In an action to foreclose a [648]*648mortgage pursuant to RPAPL article 13, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated May 27, 1994, which denied his motion to commence an action pursuant to RPAPL 1301 (3) to recover the amount of the deficiency resulting from the sale of the mortgaged property.

Ordered that the order is affirmed, with costs.

RPAPL 1301 (3) requires a plaintiff to obtain leave of court to maintain an action to recover on the mortgage debt during the pendency of an action to foreclose the mortgage or after final judgment for the plaintiff (see, Lehman v Roseanne Investors Corp., 106 AD2d 617; Boyd v Jarvis, 74 AD2d 937). It is well settled that leave to bring a separate action against a party who was a defendant in the foreclosure action will not be granted " 'unless special circumstances were shown which manifestly required that course’ ” (Sanders v Palmer, 68 NY2d 180, 185). The law office failure cited by the plaintiff does not constitute special circumstances warranting that the court grant permission to maintain his proposed action against the defendant (cf., Irving Trust Co. v Seltzer, 265 App Div 696). Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur.

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—In an action to foreclose a [648]*648mortgage pursuant to RPAPL article 13, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated May 27, 1994, which denied his motion to commence an action pursuant to RPAPL 1301 (3) to recover the amount of the deficiency resulting from the sale of the mortgaged property.

Ordered that the order is affirmed, with costs.

RPAPL 1301 (3) requires a plaintiff to obtain leave of court to maintain an action to recover on the mortgage debt during the pendency of an action to foreclose the mortgage or after final judgment for the plaintiff (see, Lehman v Roseanne Investors Corp., 106 AD2d 617; Boyd v Jarvis, 74 AD2d 937). It is well settled that leave to bring a separate action against a party who was a defendant in the foreclosure action will not be granted " 'unless special circumstances were shown which manifestly required that course’ ” (Sanders v Palmer, 68 NY2d 180, 185). The law office failure cited by the plaintiff does not constitute special circumstances warranting that the court grant permission to maintain his proposed action against the defendant (cf., Irving Trust Co. v Seltzer, 265 App Div 696). Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur.

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Bluebook (online)

218 A.D.2d 647, 630 N.Y.S.2d 367, 1995 N.Y. App. Div. LEXIS 8310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wand-v-saleh-nyappdiv-1995.

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