On April 9, 2025, the Second Department issued a decision in NewBank v. Yong Won Bu, 2025 NY Slip Op. 02078, holding that the defendant has the burden of showing that a foreclosure is barred by RPAPL 1301, explaining:
Pursuant to RPAPL 1301, the 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. Courts have recognized that RPAPL 1301 should be strictly construed since it is in derogation of a plaintiff’s common-law right to pursue the alternate remedies of foreclosure and recovery of the mortgage debt at the same time.
RPAPL 1301(1) provides, in relevant part, that where 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. Compliance with RPAPL 1301(1) is a condition precedent to an action to foreclose a mortgage.
Here, since the defendants did not submit evidence demonstrating that the plaintiff failed to comply with the requirements of RPAPL 1301(1), the defendants failed to establish that they were entitled to dismissal of the complaint pursuant to RPAPL 1301. Accordingly, the Supreme Court should have denied the defendants’ motion pursuant to RPAPL 1301 to dismiss the complaint insofar as asserted against them.
(Internal quotations and citations omitted).