Wells Fargo Bank Minnesota v. Cohn

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.