TBS Enters, v. Grobe – Case Brief Summary (New York)

In TBS Enters, v. Grobe, 114 A.D.2d 445, 494 N.Y.S.2d 716 (2nd Dep't 1985), app denied 67 N.Y.2d 602, 490 N.E.2d 556 (1986), the plaintiff pursued his remedies in a foreclosure action through the sale without having included a request for a deficiency judgment.

Thereafter, plaintiff commenced a separate action to recover on the defendant's signed personal guaranty, to the extent of the deficiency.

The trial court dismissed the separate action and the Appellate Division affirmed, finding that the personal guaranty "represented part of a debt secured by the mortgage which was the subject of the foreclosure action, and that [the separate] action was barred by operation of RPAPL 1301, 1371." (114 AD2d at 445-46.)

The stated rationale was to insure the proper calculation of the amount due and owing on the note and guaranty, which amount is "subject to reduction by an amount representing the fair market value of the mortgaged premises" as established by the sale. (Id. at 448.)