Section 1401. When mortgage may be foreclosed

1. A mortgage upon real
  property situated  within  the  state,  excepting  a  mortgage  on  real
  property  improved  solely by (a) a residential building containing less
  than  six  dwelling  units,  including   structures   and   improvements
  appurtenant  thereto,  or  (b)  a  residential  condominium  unit  in  a
  residential building owned in a condominium form of ownership, or (c)  a
  residential  building, including structures and improvements appurtenant
  thereto, owned by a qualified cooperative apartment corporation, or  (d)
  a  building  located  in a city with a population of one million or more
  where the number of units occupied by residential tenants is equal to or
  greater than sixty-five per centum of the total number of units  in  the
  building,  containing  a provision that, upon a default of the mortgage,
  or the note, bond or other obligation  secured  thereby,  the  mortgagee
  shall  have  the right to sell the mortgaged property, may be foreclosed
  in the manner prescribed in this article for a  non-judicial  proceeding
  for foreclosure by power of sale, where the following requisites occur:
    (1)  Default  has  occurred  under  the  mortgage  and the outstanding
  indebtedness has been declared immediately due and  payable  by  written
  notice to the mortgagor given in the manner required by the mortgage.
    (2)  An action has not been brought to recover the debt secured by the
  mortgage, or any part  thereof,  or  to  foreclose  the  mortgage  under
  article  thirteen of this chapter; or, if an action on the debt has been
  brought, it has been discontinued or dismissed without prejudice against
  the plaintiff, or an execution, issued upon a judgment rendered  therein
  in   favor  of  the  plaintiff,  has  been  returned  wholly  or  partly
  unsatisfied.
    (3) The mortgage has been duly recorded  in  accordance  with  article
  nine  of  the  real property law in the land records in the county where
  the property is situated.
    (4) The first notice of sale has been published  within  the  time  in
  which an action could be commenced to foreclose such mortgage.
    2.  Non-judicial foreclosure by power of sale pursuant to this article
  shall not be available to a mortgagee holding  a  mortgage  on  property
  containing residential apartment units where the mortgagee seeks, in and
  by the non-judicial foreclosure of the mortgaged property or as a result
  thereof,  to  foreclose,  terminate,  modify,  or  impair  the  tenant's
  interests in any leases for residential units in the mortgaged  property
  or the tenant's possessory rights pursuant thereto.
    * NB Repealed July 1, 2009