STEUBEN TRUST CO v. BUONO (1998)

 Supreme Court erred in granting plaintiff's motion for a deficiency judgment in this mortgage foreclosure action (see, RPAPL 1371 [2] ).   Although the action was stayed when Robert G. Buono (defendant) filed for bankruptcy (11 U.S.C.A. § 362[a][2] ), that stay was lifted on May 25, 1995 to permit plaintiff to proceed with the foreclosure.   The judgment of foreclosure was entered on August 8, 1995, and the property was sold at auction and the deed delivered to the purchasers on October 17, 1995.   Plaintiff did not bring his motion within 90 days of the date that the deed was delivered as required by RPAPL 1371(2), but waited until after the bankruptcy petition was dismissed.   We reject plaintiff's contention that the motion is timely because Bankruptcy Court lifted the stay only with respect to the foreclosure action and not with respect to the motion for a deficiency judgment.   A motion for a deficiency judgment is part of, and not separate from, the foreclosure action (see, RPAPL 1371[1];  Sanders v. Palmer, 68 N.Y.2d 180, 183, 507 N.Y.S.2d 844, 499 N.E.2d 1242).   Because the motion was authorized based on the order in Bankruptcy Court lifting the stay to permit the foreclosure to proceed (see, In re Tyler, 166 B.R. 21, 25 [Bankr.W.D.N.Y.] ), we reverse the order and dismiss plaintiff's motion as time-barred (see, Crossland Sav. v. Patton, 182 A.D.2d 496, 582 N.Y.S.2d 21, lv. denied 80 N.Y.2d 755, 588 N.Y.S.2d 823, 602 N.E.2d 231;  Voss v. Multifilm Corp. of Am., 112 A.D.2d 216, 217, 491 N.Y.S.2d 434).

Order unanimously reversed on the law with costs and motion dismissed.

MEMORANDUM: