Opinion
2019-07614
02-10-2021
Deutsche Bank National Trust Company, etc., respondent, v. Anthony March, appellant, et al., defendants. David B. Calender, Valley Stream, NY, for appellant.
Parker Ibrahim & Berg LLP, New York, NY (Ben Z. Raindorf of counsel), for respondent.
LEONARD B. AUSTIN HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ. (Index No. 708074/18)
Parker Ibrahim & Berg LLP, New York, NY (Ben Z. Raindorf of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Anthony March appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered April 19, 2019. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred.
ORDERED that the order is affirmed, with costs.
Since the defendant demonstrated that the acceleration of the mortgage debt occurred more than six years prior to the commencement of the present action, the defendant sustained his initial burden of demonstrating, prima facie, that the action was untimely (see 21st Mtge. Corp. v Balliraj, 177 AD3d 687, 689). However, in opposition, the plaintiff raised a triable issue of fact as to whether the plaintiff revoked its election to accelerate the debt. The plaintiff submitted evidence that, in addition to voluntarily discontinuing a prior foreclosure action, it resumed its demand for monthly installment payments by invoicing the defendant for those payments (see Christiana Trust v Barua, 184 AD3d 140, 146-147; Milone v US Bank N.A., 164 AD3d 145, 154).
The Supreme Court properly declined to consider the defendant's additional arguments in support of his motion for summary dismissing the complaint insofar as asserted against him as those arguments were raised for the first time in his reply papers (see First Republic Bank v Salander, 131 AD3d 668, 669).
CHAMBERS, J.P., AUSTIN, LASALLE and BRATHWAITE NELSON, JJ., concur. ENTER:
Aprilanne Agostino
Clerk of the Court