Opinion
5772N Index 452981/15E
02-20-2018
NATIONSTAR MORTGAGE LLC, Plaintiff–Respondent, v. Badrul ISLAM, et al., Defendants, NY Prime Holding LLC, Defendant–Appellant.
Steven Zalewski & Associates, Kew Gardens (Dustin Bowman of counsel), for appellant. Sandelands Eyet LLP, New York (Jamie N. Burke of counsel), for respondent.
Steven Zalewski & Associates, Kew Gardens (Dustin Bowman of counsel), for appellant.
Sandelands Eyet LLP, New York (Jamie N. Burke of counsel), for respondent.
Renwick, J.P., Richter, Manzanet–Daniels, Andrias, Gesmer, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about December 12, 2016, which denied defendant N.Y. Prime Holding LLC's pre-answer motion to dismiss the complaint as untimely, unanimously affirmed, with costs.
Defendant never met its initial burden to show that plaintiff's action is untimely. Plaintiff's predecessor-in-interest accelerated the mortgage and note for the property by commencing a foreclosure action on October 29, 2009, which was subsequently dismissed without prejudice. The applicable six-year limitations period commenced upon filing of the 2009 action (see CDR Créances S.A. v. Euro–American Lodging Corp., 43 A.D.3d 45, 51, 837 N.Y.S.2d 33 [1st Dept. 2007] ).
The instant action was commenced with the filing of a complaint on October 29, 2015, which, excluding the day upon which the prior action was commenced (see General Construction Law § 20 ; Turner v. City of New York, 94 A.D.3d 635, 636, 943 N.Y.S.2d 454 [1st Dept. 2012] ; Tismer v. New York Edison Co., 228 N.Y. 156, 163–164, 126 N.E. 729 [1920] ) was within the applicable six-year statute of limitations ( CPLR 213[4] ).