Federal Home Loan Mortgage Corp. v. Sierra

Order and judgment (one paper), Supreme Court, New York County (Herman Cahn, J.), entered on or about April 27, 1995, which, insofar as appealed from as limited by plaintiffs brief, denied [284] plaintiffs motion for summary judgment in lieu of complaint and granted defendant’s cross motion to dismiss the action, unanimously affirmed, without costs. We agree with the IAS Court that the four guarantees in issue, given by defendant in settlement of four mortgage foreclosure actions that plaintiff had brought in Federal court, do not represent obligations separate and distinct from the debts underlying the four mortgages to which they all refer (compare, GIT Indus. v Rose, 81 AD2d 656, 657). Therefore, the guarantees cannot be enforced, plaintiff having sought neither leave from the Federal court to bring a separate action pursuant to RPAPL 1301 (3) nor deficiency judgments pursuant to RPAPL 1371 (3) (TBS Enters. v Grobe, 114 AD2d 445, lv denied 67 NY2d 602). Any alleged waiver of RPAPL 1371 (3) does not avail plaintiff, since it is plaintiff’s failure to seek deficiency judgments pursuant to that statute that renders the four guarantees unenforceable (supra, at 447-448). Concur—Sullivan, J. P., Ellerin, Wallach, Williams and Mazzarelli, JJ.