v Paskesz, 131 AD3d 1235 Aurora Loan Servs., LLC v Lopa, 88 AD3d 929, 930 Gizzi v Hall, 309 AD2d 1140, 1141 Wyoming County Bank & Trust Co. Where a creditor holds both a debt instrument and a mortgage which is given to secure the debt, the creditor may elect either to sue at law to recover on the debt, or to sue in equity to foreclose on the mortgage (see Copp v Sands Point Mar., 17 NY2d 291, 293 VNB N.Y. The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, contending, inter alia, that the plaintiff's only legal remedy was to commence an action to foreclose the second mortgage which secured the loan.

Alleging a default in repayment, the plaintiff subsequently commenced this action to recover damages for breach of the agreement. The loan was secured by a second mortgage executed by the defendant. The plaintiff and the defendant entered into a home equity loan agreement (hereinafter the agreement) whereby the plaintiff agreed to loan the defendant certain funds, and the defendant agreed to repay the loan with interest. ORDERED that the order is reversed, on the law, with costs, and the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint is denied. In an action, inter alia, to recover damages for breach of a home equity loan agreement, the plaintiff appeals from an order of the Supreme Court, Kings County (Graham, J.), dated March 13, 2014, which granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and Allison M. This opinion is uncorrected and subject to revision before publication in the Official Reports.ДЄppellate Division, Second Judicial Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law В§ 431.

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