In a September 28, 2010, decision by Justice Driscoll in connection with a foreclosure action by plaintiff-mortgagee, a North Carolina bank, against defendant-mortgagor, a New York limited liability company, and on defendant’s motion to dismiss on grounds that plaintiff was a foreign corporation not licensed to do business in New York and failed properly to elect its remedy either at law or in equity, the court denied the motion as to plaintiff’s right to sue and granted the motion as to election of remedies. Specifically, the court held that § 200 of the Banking Law authorizes banks to maintain actions to enforce obligations arising out of mortgages given to secure loans made in New York. Concluding further that RPAPL § 1301 “preclude[s] a mortgagee who has elected foreclosure from commencing an action on the mortgage debt without leave of the court,” the court stayed plaintiff’s prosecution of a deficiency judgment based on a promissory note pending the outcome of the foreclosure action.
Greystone Bank v 15 Hoover Street, LLC, Sup Ct, Nassau County, September 28, 2010, Driscoll, J, Index No. 007223-10