On August 11, 2022, Justice Knipel of the Kings County Commercial Division issued a decision in Sharestates Invs., LLC v. 280 Linden LLC, 2022 NY Slip Op. 32780(U), holding that it did not violate RPAPL § 1301 by simultaneously suing to foreclose on a mortgage and enforce a guaranty on a note, explaining:
The answering defendants’ next contention, that plaintiff – by concurrently suing Azrak on the guarantee – is in violation of RPAPL § 1301(3), misconstrues the purpose of the statute. The intent of ‘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. Stated otherwise, 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. This principle of election of remedies applies with equal force to a separate action to recover under a loan guarantee. Although Azrak is entitled to be shielded from the expense and annoyance of two independent actions at the same time with reference to the same debt the statutory bar does not apply here because, at this time, plaintiff is pursuing in a single action all of its claims as against 280 Linden under the note/mortgage and as against Azrak under the guarantee.
(Internal quotations and citations omitted).