Court Grants Summary Judgment In Lieu Of Complaint Against Loan Guarantor Despite A Pending Foreclosure Action Against The Primary Borrower

Posted: October 27, 2025 / Written by: Jeffrey M. Eilender, Joshua Wurtzel, Channing J. Turner, Thomas A. Kissane, Samuel L. Butt / Categories Guaranty , Summary Judgment in Lieu of Complaint

Court Grants Summary Judgment In Lieu Of Complaint Against Loan Guarantor Despite A Pending Foreclosure Action Against The Primary Borrower

On September 12, 2025, Justice Melissa A. Crane granted a plaintiff’s motion for accelerated summary judgment in lieu of complaint against the guarantor on a loan even though a separate action to foreclose against the primary debtor remained pending. In JPMDB 2018-C8 Constitution Plaza, LLC v. Aaron Berger, Index No. 651312/2025, the borrower defaulted on the loan and subsequently filed for bankruptcy. The plaintiff (who had been assigned the loan documents by the original lender) sued the individual guarantor on the loan in New York and initiated a foreclosure action on collateral in Connecticut. The court granted judgment to the plaintiff notwithstanding the ongoing foreclosure proceeding, explaining:

Dismissal under CPLR 3211(a)(4) is not warranted. The Connecticut foreclosure action does not involve the same defendants nor the same claims. Here, plaintiff sues the guarantor under the guaranty, seeking a money judgment. To the extent that plaintiff recovers amounts that borrower owes in the foreclosure proceeding, guarantor may be entitled to an offset.

The attorneys at Schlam Stone & Dolan have extensive experience with actions brought against guarantors. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.