Pagano v. Smith
Decision Date | 22 February 1994 |
Citation | 201 A.D.2d 632,608 N.Y.S.2d 268 |
Parties | John PAGANO, Respondent, v. Jimmy SMITH, Appellant. |
Court | New York Supreme Court — Appellate Division |
Goldweber and Hershkowitz, Mineola (Seth D. Bykofsky, on the brief), for appellant.
Pelle & Pelle, Massapequa (Domenick A. Pelle, of counsel and Nicholas Panzini, on the brief), for respondent.
Before MANGANO, P.J., and O'BRIEN, PIZZUTO and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
In an action to foreclose a mortgage, the defendant appeals from an order of the Supreme Court, Nassau County (Goldstein, J.), dated October 9, 1991, which denied his motion to dismiss the complaint and granted the plaintiff's motion to amend the complaint.
ORDERED that the order is affirmed, with costs.
In 1977, the plaintiff John Pagano loaned the defendant Jimmy Smith $30,000 and received a mortgage as security for the loan. In a declaratory judgment action commenced in 1979, Smith sought cancellation of the mortgage and Pagano counter-claimed to recover the debt. While that action was pending, Pagano commenced the instant action in 1986 to foreclose on the mortgage. The complaint in the foreclosure action included a statement that no other action had been commenced for the recovery of the mortgage debt. In 1987, following the trial of the declaratory judgment action, Pagano was awarded a judgment on the mortgage debt in the principal amount of $30,000 (see, Smith v. Pagano, 154 A.D.2d 586, 546 N.Y.S.2d 415).
Smith subsequently moved in 1991 to dismiss the foreclosure action on the grounds that it was barred by the Statute of Limitations and that RPAPL 1301 precluded Pagano from bringing the foreclosure action while the action to recover the mortgage debt was pending. At the same time, Pagano moved for permission to amend the complaint in order to comply with RPAPL 1301(2), which provides that "[t]he complaint shall state whether any other action has been brought to recover * * * [the] debt". The Supreme Court granted Pagano's motion to amend and denied Smith's motion to dismiss the complaint.
We conclude that the court did not err in permitting Pagano to amend his complaint. Pursuant to RPAPL 1301(1), an action may be maintained to foreclose the mortgage after final judgment for the plaintiff has been rendered in an action to recover the mortgage debt, provided an execution against the property of the defendant has been issued upon the judgment to the sheriff and has been returned wholly or partly unsatisfied (see, Goddard v. Johnson, 96 Misc.2d...
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