Opinion
April 25, 1996
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
We agree with the IAS Court that the four guarantees in issue, given by defendant in settlement of four mortgage foreclosure actions that plaintiff had brought in Federal court, do not represent obligations separate and distinct from the debts underlying the four mortgages to which they all refer ( compare, GIT Indus. v. Rose, 81 A.D.2d 656, 657). Therefore, the guarantees cannot be enforced, plaintiff having sought neither leave from the Federal court to bring a separate action pursuant to RPAPL 1301 (3) nor deficiency judgments pursuant to RPAPL 1371 (3) ( TBS Enters. v. Grobe, 114 A.D.2d 445, lv denied 67 N.Y.2d 602). Any alleged waiver of RPAPL 1371 (3) does not avail plaintiff, since it is plaintiff's failure to seek deficiency judgments pursuant to that statute that renders the four guarantees unenforceable ( supra, at 447-448).
Concur — Sullivan, J.P., Ellerin, Wallach, Williams and Mazzarelli, JJ.