Bank of New York, as Successor to Scarsdale National Bank and Trust Company, Plaintiff, v. Midland Avenue Development Co., Also Known as Midland Avenue Development Company, et al., Defendants; Joseph Barber et al., Individually and Doing Business as Rye Investment Group, et al., Third-Party Plaintiffs, v. Cassin, Cassin & Joseph et al., Third-Party Defendants

OPINION OF THE COURT

James R. Cowhey, J.

Motion by plaintiff to serve a second amended complaint.

This motion is disposed of as follows: Since this foreclosure action has been rendered moot by the judgment rendered on May 2, 1996 (Rudolph, J.) for the City of Rye in its tax foreclosure action of the same property, plaintiff’s application to convert this foreclosure action into an action at law to recover on the note by amending the foreclosure complaint and filing a second amended complaint is denied as plaintiff’s sole recourse is to commence a separate action on the note (European Am. Bank v Perspective Dev. Corp., 220 AD2d 717; RPAPL 1301 [3]). Since the alleged default occurred in January 1990, said action would be barred by the six-year Statute of Limitations.

The cross motion was not considered because it was not served pursuant to CPLR 2215. Opposition papers filed on or before the return date were considered by the court (W.I.L.D. W.A.T.E.R.S. v Martinez, 148 AD2d 847; CPLR 2214).