Golden Res. v. Seddio

• Decision Date: 10 June 2022
• Docket Number: Index No. 514634/20
• Citation: 2022 NY Slip Op 31846 (U)
• Parties: GOLDEN RESOURCES, LLC, Plaintiff, v. JOYCE BECKER SEDDIO. FRANK SEDDIO A/K/A FRANK R. SEDDIO, MARIE F, CONDE, JGFIN DOENO. 1 THROUGFI JOHN DOENO, 15, Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 31846(U)

GOLDEN RESOURCES, LLC, Plaintiff,
v.
JOYCE BECKER SEDDIO. FRANK SEDDIO A/K/A FRANK R. SEDDIO, MARIE F, CONDE, JGFIN DOENO. 1 THROUGFI JOHN DOENO, 15, Defendants.

Index No. 514634/20

Supreme Court, Kings County

June 10, 2022

Unpublished opinion

PRESENT: HON. LAWRENCE KNIPEL, JUSTICE.

HON. LAWRENCE KNIPEL ADMINISTRATIVE JUDGE

The following e-filed papers read herein:	NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed	18-19
Opposing Affidavits (Affirmations)	26
Affidavits/ Affirmations in Reply	36

Other Papers:

Upon, the foregoing papers, defendants Joyce Becker Seddio and Frank Seddio a/k/a/Frank R. Seddio move for an order, pursuant to CPLR32U (a) (1), (3), (10) and Real Property Actions and Proceedings Law [RPAPL] §§ 1301 and 1311, dismissing the complaint of plaintiff Golden Resources, LLC.

Plaintiff commenced this action to foreclose certain mortgages encumbering the properties at 2333 East 69th Street and 9306 Flatlands Avenue in Brooklyn. The

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mortgages were executed by defendants to secure a $1,120,000 loan to certain companies in Kentucky (borrowers). The promissory note evincing the loan was executed on July 18, 2013. As additional security for repayment of the loan, Frank Seddio entered into a personal guaranty dated July 18, 2013,^[1] Upon the default of the borrowers, plaintiff commenced a Kentucky action against the borrowers and Frank Seddio, as guarantor, to recover a judgment for the outstanding, indebtedness. By order dated March 19, 2018, the Fayette County Circuit Court rejected Frank Seddio's alleged defenses, granted plaintiffs motion for partial summary judgment against Frank Seddio and granted plaintiff a money judgment against Frank Seddio in the amount of (a) $2,063,303.67 as of February 1, 2018j plus additional late fees and interest (at the default rate under the note of 13,0% per annum) from February 2, 2018 until paid in full, and '(b) $226,653,40 for attorney's fees and expenses incurred by plaintiff as of December 3, 2017, plus any additional legal fees and expenses incurred by plaintiff until such judgment was paid in full.

In response to the instant action to foreclose the subject mortgages, defendants brought the instant motion to dismiss on grounds that the action is precluded under the election of remedies provision of RPAPL 1301.

Pursuant to RPAPL 1301, "[t]he holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage but must only elect one of these alternate remedies" (Gizzi v Hall, 309 A.D.2d 1140, 1141 [3d Dept 2003]; see Aurora Loan Servs., LLC v. Lopa, 88 A.D.3d 929, 930 [2d Dept 2011]). "The

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purpose of the statute is to avoid multiple: lawsuits to recover the same Mortgage debt" (Aurora Loan Servs., LLC, 88 A.D.3d at 930). RPAPL 1301 (1) provides that "[w]here final; judgment for the plaintiff has been rendered in an action to recover any part of the mortgage debt, an action shall not be commenced or maintained to foreclose the mortgage, unless an execution against the property Of the defendant has been issued . . . and has been returned wholly or partly unsatisfied" (see Sabbatini v Galati 14 A.D.3d 547, 548 [2d Dept 2005]). "Stated another way, an action for foreclosure cannot be maintained where the plaintiff has previously pursued a separate action on the note and recovered a money judgment against the defendant which has not been satisfied" (VNB N.Y. Corp. v Paskesz, 131 A.D.3d 1235, 1236 [2d Dept 2015]; see Sirnms v Soraci. 252 A.D.2d 519 [2d Dept 1998]; see also Marine Midland Bank v Lake Huntington Dev. Group, 185 A.D.2d 395 [3d Dept 1992]), The election of remedies rule applies to actions on the guaranty of a note (see TBS Enters, v Grobe, 114 A.D.2d 445 [2d Dept 1985]; Manufacturers Hanover Trust Co. v 400 Garden City Assoc, 150 Misc.2d 247, 249 [Sup Ct, Nassau County 1991]). 'The...