On June 10, 2022, Justice Knipel of the Kings County Commercial Division issued a decision in Golden Resources, LLC v. Seddio, 2022 NY Slip Op. 31846(U), holding that a plaintiff that elected to bring an action at law to collect on a note could not later bring an equitable action to foreclose on a mortgage, explaining:
Pursuant to RPAPL 1301, ”[t]he holder of a note and m01igage 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. The purpose of the statute is to avoid multiple lawsuits to recover the same mortgage debt. RPAPL 1301(1) provides that where final judgment for the plaintiff has been tendered 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. 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. The election of remedies rule applies to actions on the guaranty of a note. The legislative intention underlying RPAPL 1301 is to avoid multiple suits to recover the same mortgage debt and confine the proceedings to collect the mortgage debt to one court and one action. The statute’s purpose is to avoid inappropriate duplicative and vexatious litigation by the same party.
It is undisputed that no execution has been issued with respect to the Kentucky judgment. Therefore, the instant foreclosure action is barred by RPAPL 1301(1).
(Internal quotations and citations omitted) (emphasis added).