Opinion
2209.
Decided February 19, 2004.
Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about July 15, 2003, which, in this action upon defendants' loan guarantees, denied defendants' motion to dismiss the complaint, pursuant to CPLR 3211 and RPAPL § 1301(3), unanimously affirmed, without costs.
Barry G. Felder, for Plaintiff-Respondent.
Peter M. Levine, for Defendants-Appellants.
Before: Saxe, J.P., Sullivan, Rosenberger, Friedman, Gonzalez, JJ.
Although RPAPL § 1301(3) prohibits a mortgage lender seeking repayment of a loan from simultaneously prosecuting an action at law to recover upon a promissory note and an action in equity to foreclose the mortgage, the prohibition does not apply where, as here, the property securing the loan is located outside of New York State ( see Fed. Deposit Ins. Corp. v. DeCresenzo, 207 A.D.2d 823; Fielding v. Drew, 94 A.D.2d 687). Accordingly, the instant action upon defendants' promissory note guaranteeing payment of the subject loan is not barred by RPAPL § 1301(3).
We have considered defendants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.