MERCHANTS BANK OF INDIANA v. LLC (2024)

Supreme Court, Appellate Division, First Department, New York.

MERCHANTS BANK OF INDIANA, Plaintiff–Respondent, v. 19 W 55 LLC et al., Defendants–Appellants, The Allure Group, LLC, et al., Defendants.

2067

Decided: April 16, 2024

Kern, J.P., Singh, Scarpulla, Mendez, Higgitt, JJ.

Jacobs P.C., New York (Lewis S. Fischbein of counsel), for appellants. Knuckles & Manfro LLP, Elmsford (John E. Brigandi of counsel), for respondent.

Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered November 13, 2023, which denied defendants 19 W 55 LLC and Abraham Leifer's motion to dismiss the amended complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, with costs.

RPAPL 1301(3) does not warrant dismissal of the complaint because plaintiff seeks to foreclose on the mortgage while also preserving its right to request a deficiency judgment (see Aurora Loan Servs., LLC v. Lopa, 88 AD3d 929, 930 [2d Dept 2011]). Nor have moving defendants demonstrated prejudice by plaintiff's alleged failure to comply with RPAPL 1303(3), as they are not in a position of having to defend against more than one lawsuit to recover the same mortgage debt (see HSBC Bank USA, N.A. v. Kading, 204 AD3d 649, 651 [2d Dept 2022]).

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