Simms v. Soraci

• Citation: 252 A.D.2d 519,675 N.Y.S.2d 295
• Parties: Stephen R. SIMMS, Respondent, v. Anthony SORACI, et al., Appellants, et al., Defendants.
• Decision Date: 13 July 1998
• Court: New York Supreme Court Appellate Division

Page 295

675 N.Y.S.2d 295

Stephen R. SIMMS, Respondent, v. Anthony SORACI, et al., Appellants, et al., Defendants.

Supreme Court of New York, Appellate Division,

Second Department.

July 13, 1998.

Ross M. Gadye, New York, N.Y., for appellants.

Townley & Updike, New York, N.Y. (Jonathan M. Herman and Michael S. Belohlavek of counsel), for respondent.

In an action to foreclose a mortgage, the defendants Anthony Soraci and Window Doctor of Staten Island, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Leone, J.), entered July 2, 1992, as granted the plaintiff's motion for summary judgment. Justice Rosenblatt has been substituted for the late Justice Lawrence (22 NYCRR 670.1[c] ).

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the motion is denied, and upon searching the record, summary judgment is granted in favor of the defendants Anthony Soraci and Window Doctor of Staten Island, Inc., the complaint is dismissed insofar as it is asserted against them, and the action against the remaining defendants is severed.

This appeal, originally heard in November 1994, was held in abeyance pending the determination of a petition in bankruptcy filed by the defendant Anthony Soraci. The parties failed to notify this court that the bankruptcy proceeding was concluded.

The plaintiff has pursued a separate action on the note which was secured by the instant mortgage against the mortgagor Window Doctor of Staten Island, Inc., and a guarantor on the note, Anthony Soraci. In that action he recovered a money judgment against Window Doctor of Staten Island, Inc., and Soraci (see, Simms v. Window Doctor of Staten Island, --- A.D.2d ----, --- N.Y.S.2d ---- [decided herewith] ). We agree with the appellants that the present action may not properly be maintained because "execution against the property of the defendant [mortgagors] has [not] been issued * * * and returned wholly or partly unsatisfied" (RPAPL 1301[1]; see, Marine Midland Bank v. Lake Huntington Dev. Group, 185 A.D.2d 395, 396, 585 N.Y.S.2d 836).

BRACKEN, J.P., ROSENBLATT, FRIEDMANN and GOLDSTEIN, JJ., concur.