BANK NATIONAL ASSOCIATION v. BEYMER 50 (2020)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about May 22, 2019, which denied defendants' motion to dismiss the complaint in this foreclosure action, unanimously affirmed, without costs.

RPAPL 1301(3) provides that “[w]hile [an] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought.”  The purpose of this statute is to protect the mortgagor “from the expense and annoyance of two independent actions at the same time with reference to the same debt” (Central Trust Co. v. Dann, 85 N.Y.2d 767, 772, 628 N.Y.S.2d 259, 651 N.E.2d 1278 (1995)[emphasis omitted] ).  Since the 2013 foreclosure action was dismissed against defendants Beymer and Bruno, and there was no judgment in favor of plaintiff, RPAPL 1301(3), a statute “which must be strictly construed” was not applicable to this action (Hometown Bank of Hudson Val. v. Belardinelli, 127 A.D.3d 700, 702, 7 N.Y.S.3d 289 (2d Dept. 2015) ).

Even if the 2013 foreclosure action was not formally discontinued when it was disposed of in 2013, defendants are not facing “the expense and annoyance of two independent actions at the same time with reference to the same debt,” and thus, any failure on the part of plaintiff to comply with RPAPL 1301(3) could also be “properly disregarded as a mere irregularity” (Bosco Credit v. Trust Series 2012–1 v Johnson, 177 A.D.3d 561, 562, 115 N.Y.S.3d 5 (1st Dept. 2019) ).  Under the circumstances of this case, where defendants were not prejudiced by any failure to comply with RPAPL 1301(3), since they were not in the position of having to defend against more than one lawsuit to recover the same mortgage debt, granting dismissal of the complaint in the 2018 action would “afford[ ] the defendants more relief than is contemplated by RPAPL 1301(3)” (Wells Fargo Bank, N.A. v. Irizarry, 142 A.D.3d 610, 611, 36 N.Y.S.3d 689 (2d Dept. 2016) ).

Supreme Court did not improvidently exercise its discretion in denying the motion to dismiss pursuant to CPLR 3211(a)(4) on the ground that there is another action pending (Aurora Loan Servs., LLC v. Reid, 132 A.D.3d 788, 788–789, 17 N.Y.S.3d 894 (2d Dept. 2015);  see also Whitney v. Whitney, 57 N.Y.2d 731, 732, 454 N.Y.S.2d 977, 440 N.E.2d 1324 (1982) ).