Opinion
2002-08552.
Decided April 19, 2004.
In an action to foreclose a mortgage, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Dye, J.), dated May 28, 2002, as, inter alia, granted those branches of the plaintiff's motion which were for summary judgment dismissing so much of her counterclaims as sought to recover damages pursuant to the federal Truth-in-Lending Act and pursuant to General Business Law § 349.
Jacob, Medinger Finnegan, LLP, New York, N.Y. (Bryan A. McKenna of counsel) and Donna Dougherty, Rego Park, N.Y. (Kimberly Madden of counsel), for appellant (one brief filed).
Certilman Balin Adler Hyman, LLP, East Meadow, N.Y. (M. Allan Hyman of counsel) and Ballard Spahr Andrews Ingersoll, LLP, Philadelphia, Pa. (Martin C. Bryce of counsel), for respondent (one brief filed).
Before: A. GAIL PRUDENTI, P.J., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion which were to dismiss so much of the appellant's counterclaims as sought to recover damages pursuant to the federal Truth-in-Lending Act and pursuant to General Business Law § 349 are denied, and those counterclaims are reinstated.
In this residential mortgage foreclosure action, the appellant interposed various counterclaims, inter alia, to recover money damages based on the plaintiff's alleged breach of the federal Truth-in-Lending Act ( 15 U.S.C. § 1601 et seq.) (hereinafter TILA) and General Business Law § 349. The Supreme Court dismissed so much of the appellant's first counterclaim as sought to recover damages under TILA, based on the statute of limitations defense. The Supreme Court also dismissed the third, fourth, fifth, and sixth counterclaims alleging violations of General Business Law § 349. We reverse.
With respect to the TILA counterclaim for damages, the statute states, in relevant part, "This subsection [providing for the one-year statute of limitations] does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action" ( 15 U.S.C. § 1640[e]). Pursuant to this provision, the appellant's counterclaims to recover damages under TILA are timely to the extent that such damages might offset any damage award or deficiency judgment that might be made in favor of the plaintiff and against her ( see CPLR 203[d]; Beach v. Ocwen Federal Bank, 523 U.S. 410; Public Loan Co. v. Hyde, 63 A.D.2d 193, affd 47 N.Y.2d 182; First Trust Natl. Assn. v. Chiang, 242 A.D.2d 599; Community Natl. Bank Trust Co. of N.Y. v. McClammy, 138 A.D.2d 339).
The appellant also made out a prima facie case pursuant to General Business Law § 349 by alleging that the plaintiff was engaged in a consumer-oriented misleading practice and that the appellant was injured thereby ( see Stutman v. Chemical Bank, 95 N.Y.2d 24; New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308; Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20; Negrin v. Norwest Mtge., 263 A.D.2d 39).
PRUDENTI, P.J., GOLDSTEIN, LUCIANO and COZIER, JJ., concur.