Opinion
2017–00109 Index No. 2381/15
03-06-2019
DEUTSCHE BANK TRUST COMPANY AMERICAS, etc., Appellant, v. Margaret SMITH, et al., Respondents, et al., Defendants.
Duane Morris LLP, New York, N.Y. (Brett L. Messinger of counsel), for appellant. Daniel E. Bertolino, P.C., Upper Nyack, N.Y. (Laurie A. Dorsainvil of counsel), for respondents.
Duane Morris LLP, New York, N.Y. (Brett L. Messinger of counsel), for appellant.
Daniel E. Bertolino, P.C., Upper Nyack, N.Y. (Laurie A. Dorsainvil of counsel), for respondents.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
In February 2007, the defendants Margaret Smith and Lawrence Smith (hereinafter together the defendants) granted a mortgage on their property as security for the repayment of a note. After the defendants defaulted on their payment obligations, the plaintiff's predecessor-in-interest commenced an action on November 6, 2007, to foreclose the mortgage (hereinafter the first foreclosure action). The complaint in the first foreclosure action alleged, in relevant part, that the lender had elected "to call due the entire amount secured by the mortgage." In a judgment dated February 24, 2009, the Supreme Court, after granting Lawrence Smith's motion, inter alia, to vacate a prior judgment of foreclosure and sale, dismissed the first foreclosure action.
In 2009, the plaintiff's predecessor-in-interest commenced a second action to foreclose the mortgage, but voluntarily discontinued it on March 30, 2010, stating that more time was needed to serve the defendants.
On March 30, 2015, the plaintiff commenced this action to foreclose the same mortgage. The defendants answered the complaint, asserting, inter alia, an affirmative defense based on the statute of limitations. Thereafter, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them as time-barred. In support of their motion, they submitted, inter alia, the complaint in the first foreclosure action. The Supreme Court granted the motion. The plaintiff appeals.
An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). That limitations period begins to run on the entire debt when the mortgagee elects to accelerate the mortgage (see U.S. Bank, N.A. v. Martin, 144 A.D.3d 891, 891–892, 41 N.Y.S.3d 550 ; EMC Mtge. Corp. v. Smith, 18 A.D.3d 602, 796 N.Y.S.2d 364 ; Loiacono v. Goldberg, 240 A.D.2d 476, 477, 658 N.Y.S.2d 138 ). Here, we agree with the defendants that the debt was accelerated upon the commencement of the first foreclosure action in November 2007 (see Milone v. U.S. Bank N.A., 164 A.D.3d 145, 83 N.Y.S.3d 524 ; Freedom Mtge. Corp. v. Engel, 163 A.D.3d 631, 632–633, 81 N.Y.S.3d 156 ; EMC Mtge. Corp. v. Smith, 18 A.D.3d at 603, 796 N.Y.S.2d 364 ). Since the plaintiff did not commence this action until March 2015—more than seven years later—the defendants sustained their prima facie burden on their motion for summary judgment (see Freedom Mtge. Corp. v. Engel, 163 A.D.3d at 633, 81 N.Y.S.3d 156 ).
In opposition, the plaintiff failed to raise a triable issue of fact. While a lender may revoke its election to accelerate the loan, it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action (see Milone v. U.S. Bank N.A., 164 A.D.3d 145, 83 N.Y.S.3d 524 ; Freedom Mtge. Corp. v. Engel, 163 A.D.3d at 632, 81 N.Y.S.3d 156 ; Deutsche Bank Natl. Trust Co. v. Adrian, 157 A.D.3d 934, 935, 69 N.Y.S.3d 706 ). Here, the plaintiff failed to submit any evidence of an affirmative act evincing its, or its predecessor-in-interest's, intent to revoke the acceleration of the loan prior to the expiration of the limitations period (see Freedom Mtge. Corp. v. Engel, 163 A.D.3d at 633, 81 N.Y.S.3d 156 ).
In light of our determination, we need not reach the plaintiff's remaining contentions.
Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them as time-barred.
RIVERA, J.P., CHAMBERS, HINDS–RADIX and MALTESE, JJ., concur.