Opinion
2016–09282 Index No. 7482/15
01-16-2019
Ross R. CALIGURI, Appellant, v. PENTAGON FEDERAL CREDIT UNION, Defendant.
Zinker & Herzberg, LLP, Hauppauge, N.Y. (Jeffrey Herzberg of counsel), for appellant.
Zinker & Herzberg, LLP, Hauppauge, N.Y. (Jeffrey Herzberg of counsel), for appellant.
SHERI S. ROMAN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER In an action pursuant to RPAPL 1501(4) to cancel and discharge a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated July 21, 2016. The order denied the plaintiff's motion for leave to enter a default judgment against the defendant upon its failure to appear or answer the complaint.
ORDERED that the order is affirmed, without costs or disbursements.
On or about April 23, 2015, the plaintiff mortgagor commenced this action pursuant to RPAPL 1501(4) to cancel and discharge a mortgage given to the defendant Pentagon Federal Credit Union (hereinafter Pentagon), on the ground that collection of the mortgage debt was barred by the applicable statute of limitations. Following Pentagon's failure to appear or answer the complaint, the plaintiff moved for leave to enter a default judgment in his favor. The defendant did not oppose the motion. The Supreme Court denied the unopposed motion, and the plaintiff appeals.
Mortgages, generally, are payable in installments, but, upon acceleration, the entire remaining principal amount becomes due (see Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 867, 39 N.Y.S.3d 491 ; EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 ). Acceleration of a mortgage starts running the six-year statute of limitations as to the entire debt (see CPLR 213[4] ; NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d 1068, 58 N.Y.S.3d 118 ; Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d at 867, 39 N.Y.S.3d 491 ; EMC Mtge. Corp. v. Patella, 279 A.D.2d at 605, 720 N.Y.S.2d 161 ). RPAPL 1501(4) provides a means by which a party may clear a cloud on title represented by a stale mortgage, where the "applicable statute of limitation for the commencement of an action to foreclose a mortgage ... has expired" ( JBR Constr. Corp. v. Staples, 71 A.D.3d 952, 953, 897 N.Y.S.2d 223 ; see Stewart Tit. Ins. Co. v. Bank of N.Y. Mellon, 154 A.D.3d 656, 61 N.Y.S.3d 634 ).
To be entitled to a default judgment pursuant to CPLR 3215(f), the plaintiff was required to submit proof of service of the summons and the complaint, proof of Pentagon's failure to answer or appear, and proof of the facts constituting the cause of action (see MSMJ Realty, LLC v. DLJ Mtge. Capital, Inc., 157 A.D.3d 885, 69 N.Y.S.3d 870 ; Stewart Tit. Ins. Co. v. Bank of N.Y. Mellon, 154 A.D.3d at 659, 61 N.Y.S.3d 634 ), i.e., that the six-year limitations period expired prior to the commencement of the instant action (see 53 PL Realty, LLC v. U.S. Bank N.A., 153 A.D.3d 894, 61 N.Y.S.3d 120 ).
While the filing of a summons and complaint seeking the entire unpaid balance of principal in a prior foreclosure action may constitute a valid election by the mortgagee to accelerate the maturity of the debt (see Milone v. U.S. Bank N.A., 164 A.D.3d 145, 83 N.Y.S.3d 524 ; Deutsche Bank Natl. Trust Co. v. Adrian, 157 A.D.3d 934, 935, 69 N.Y.S.3d 706 ; Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 983, 943 N.Y.S.2d 540 ), here, the plaintiff submitted only a summons from an action commenced by Pentagon on April 22, 2009, which neither identified the action as one to foreclose the subject mortgage nor expressly alleged that, as a result of the mortgagor's default, Pentagon was electing to accelerate the mortgage. The plaintiff's assertion in his supporting affidavit that Pentagon validly accelerated the mortgage debt was conclusory and insufficient (see DLJ Mtge. Capital, Inc. v. Hirsh, 161 A.D.3d 944, 945, 78 N.Y.S.3d 160 ). Further, the plaintiff's complaint alleges that after Pentagon commenced its action on April 22, 2009, he filed a bankruptcy petition on July 31, 2009, and that, by order dated October 13, 2009, Pentagon was granted relief from the automatic stay granted in bankruptcy proceedings (see 11 USC § 362 [a] ). The statute of limitations was tolled while the stay was in effect (see CPLR 204[a] ; U.S. Bank N.A. v. Joseph, 159 A.D.3d 968, 73 N.Y.S.3d 238 ; Lubonty v. U.S. Bank N.A., 159 A.D.3d 962, 74 N.Y.S.3d 279, lv granted 32 N.Y.3d 903, 2018 WL 4355016 ; U.S. Bank N.A. v. Martin, 144 A.D.3d 891, 41 N.Y.S.3d 550 ).
Accordingly, we agree with the Supreme Court's denial of the plaintiff's motion for leave to enter a default judgment against the defendant on the ground that he failed to submit evidence of the facts constituting the cause of action (see CPLR 3215[f] ; Stewart Tit. Ins. Co. v. Bank of N.Y. Mellon, 154 A.D.3d at 660, 61 N.Y.S.3d 634 ).
ROMAN, J.P., HINDS–RADIX, MALTESE and LASALLE, JJ., concur.