Wells Fargo Bank Minnesota v. Cohn

Appellate Division of the Supreme Court of New York

Wells Fargo Bank Minnesota v. Cohn

4 A.D.3d 189, 771 N.Y.S.2d 649

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

DecidedFebruary 19, 2004

StatusPublished

Cited by2 cases

This text of 4 A.D.3d 189 (Wells Fargo Bank Minnesota v. Cohn) 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

Wells Fargo Bank Minnesota v. Cohn, 4 A.D.3d 189, 771 N.Y.S.2d 649 (N.Y. Ct. App. 2004).

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Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about July 15, 2003, which, in this action upon defendants’ loan guarantees, denied defendants’ motion to dismiss the complaint, pursuant to CPLR 3211 and RPAPL 1301 (3), unanimously affirmed, without costs.

Although RPAPL 1301 (3) prohibits a mortgage lender seeking repayment of a loan from simultaneously prosecuting an action at law to recover upon a promissory note and an action in equity to foreclose the mortgage, the prohibition does not apply where, as here, the property securing the loan is located outside of New York State (see Federal Deposit Ins. Corp. v De Cresenzo, 207 AD2d 823 [1994]; Fielding v Drew, 94 AD2d 687 [1983]). Accordingly, the instant action upon defendants’ promissory note guaranteeing payment of the subject loan is not barred by RPAPL 1301 (3).

We have considered defendants’ remaining arguments and find them unavailing. Concur—Saxe, J.E, Sullivan, Rosenberger, Friedman and Gonzalez, JJ.

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Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about July 15, 2003, which, in this action upon defendants’ loan guarantees, denied defendants’ motion to dismiss the complaint, pursuant to CPLR 3211 and RPAPL 1301 (3), unanimously affirmed, without costs.

Although RPAPL 1301 (3) prohibits a mortgage lender seeking repayment of a loan from simultaneously prosecuting an action at law to recover upon a promissory note and an action in equity to foreclose the mortgage, the prohibition does not apply where, as here, the property securing the loan is located outside of New York State (see Federal Deposit Ins. Corp. v De Cresenzo, 207 AD2d 823 [1994]; Fielding v Drew, 94 AD2d 687 [1983]). Accordingly, the instant action upon defendants’ promissory note guaranteeing payment of the subject loan is not barred by RPAPL 1301 (3).

We have considered defendants’ remaining arguments and find them unavailing. Concur—Saxe, J.E, Sullivan, Rosenberger, Friedman and Gonzalez, JJ.

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Bluebook (online)

4 A.D.3d 189, 771 N.Y.S.2d 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-fargo-bank-minnesota-v-cohn-nyappdiv-2004.

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