Kleet Lumber Co. v. J&J Foley Construction Corp.

— In two actions to recover for goods sold and delivered, defendants William Foley and Dennis Charette and plaintiff Kleet Lumber Co. cross-appeal from an order of the Supreme Court, Suffolk County (De Luca, J.), entered December 4, 1981, which denied all parties’ motions for summary judgment. Order affirmed, without Costs or disbursements. Although Special Term correctly concluded that issues of fact were present precluding summary judgment, it prematurely concluded that RPAPL 1371 is not applicable in this case. Defendants Dennis Charette and William Foley have raised, as an additional question of fact, whether the corporate second mortgage, upon which plaintiff foreclosed prior to commencing the instant action, had been given as security for the same debts upon which recovery is sought here. If this be so, the failure to have obtained a deficiency judgment pursuant to RPAPL 1371 may be raised by the defendant guarantors as a defense to the instant action (see Kings County Sav. Bank v Fulton Sav. Bank Kings County, 268 App Div 452, 454). O’Connor, J. P., Bracken, Rubin and Boyers, JJ., concur.