Opinion
2018–00560 Index No. 18091/14
01-13-2021
BANK OF AMERICA, N.A., appellant, v. Micheline RICHE, respondent, et al., defendant.
Winston & Strawn, LLP, New York, N.Y. (Jason R. Lipkin of counsel), for appellant.
Winston & Strawn, LLP, New York, N.Y. (Jason R. Lipkin of counsel), for appellant.
WILLIAM F. MASTRO, A.P.J., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated September 5, 2017. The order granted the motion of the defendant Micheline Riche for summary judgment dismissing the complaint insofar as asserted against her as time-barred.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Micheline Riche for summary judgment dismissing the complaint insofar as asserted against her is denied.
In December 2014, the plaintiff, Bank of America, N.A., commenced this action against, among others, the defendant Micheline Riche (hereinafter the defendant) to foreclose a mortgage on certain residential property in Brooklyn. In April 2009, Countrywide Home Loans Servicing, LP (hereinafter Countrywide), the plaintiff's predecessor in interest, had commenced a prior mortgage foreclosure action against the defendant relating to the same debt (hereinafter the first action). Shortly before commencing the first action, Countrywide sent the defendant a notice of default, dated June 18, 2008 (hereinafter the 2008 notice), which indicated an intent to accelerate the debt if the defendant did not make certain payments. In July 2014, the Supreme Court granted Countrywide's motion to discontinue the first action. In December 2014, the plaintiff commenced this action and, thereafter, the defendant moved for summary judgment dismissing the complaint in this action insofar as asserted against her as time-barred, contending that the notice of default accelerated the debt more than six years before this action was commenced. The Supreme Court, inter alia, granted the defendant's motion. The plaintiff appeals.
An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). Even if a mortgage is payable in installments, the limitation period begins to run on the entire mortgage debt when the mortgagee or its predecessor elects to accelerate the mortgage (see Ditech Fin., LLC v. Reiss, 175 A.D.3d 618, 619, 107 N.Y.S.3d 108 ; Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ).
Contrary to the defendant's contention, the language in the 2008 notice fell short of an actual acceleration (see Milone v. U.S. Bank N.A., 164 A.D.3d 145, 152, 83 N.Y.S.3d 524 ). Accordingly, the debt was not accelerated, and the statute of limitations did not begin to run until the first action was commenced in April 2009. Since this action was commenced approximately 5½ years later, in December 2014, which was within the six-year statute of limitations (see CPLR 213[4] ), the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against her as time-barred (see Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 867–868, 39 N.Y.S.3d 491 ).
MASTRO, A.P.J., MILLER, DUFFY and BRATHWAITE NELSON, JJ., concur.