Opinion
No. 2019-12934 Index No. 611543/17
07-19-2023
Elyse M. Sansone, respondent, v. North Shore Investors Realty Group, LLC, appellant, et al., defendant.
Lawrence and Walsh, P.C., Hempstead, NY (John Tangel of counsel), for appellant. The Frank Law Firm, P.C., Old Brookville, NY (Thomas Frank of counsel), for respondent.
Lawrence and Walsh, P.C., Hempstead, NY (John Tangel of counsel), for appellant.
The Frank Law Firm, P.C., Old Brookville, NY (Thomas Frank of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, HELEN VOUTSINAS, JJ.
DECISION & ORDER
In an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the defendant North Shore Investors Realty Group, LLC, appeals from a judgment of the Supreme Court, Nassau County (Julianne T. Capetola, J.), entered September 25, 2019. The judgment, upon an order of the same court entered April 25, 2018, granting the plaintiff's motion for summary judgment on the complaint, is in favor of the plaintiff and against the defendant North Shore Investors Realty Group, LLC, canceling and discharging of record the subject mortgage.
ORDERED that the judgment is reversed, on the law, with costs, the plaintiff's motion for summary judgment on the complaint is denied, and the order entered April 25, 2018, is modified accordingly.
In October 2017, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage on the ground that the statute of limitations within which to commence an action to foreclose the mortgage had expired. The plaintiff then moved for summary judgment on the complaint. In an order entered April 25, 2018, the Supreme Court granted the plaintiff's motion. The defendant North Shore Investors Realty Group, LLC, appeals from a judgment entered September 25, 2019, which, upon the order entered April 25, 2018, is in favor of the plaintiff and against it, canceling and discharging of record the subject mortgage.
Pursuant to RPAPL 1501(4), a person having an estate or interest in real property subject to a mortgage may maintain an action to secure the cancellation and discharge of the encumbrance, and to adjudge the estate or interest free of it, if the applicable statute of limitations for commencing a foreclosure action has expired (see Ditmid Holdings, LLC v JPMorgan Chase Bank, N.A., 180 A.D.3d 1002, 1003). An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]). "With respect to a mortgage payable in installments, separate causes of action accrue for each installment that is not paid, and the statute of limitations begins to run on the date each installment becomes due" (Bank of N.Y. Mellon v Craig, 169 A.D.3d 627, 628; see Nationstar Mtge., LLC v Weisblum, 143 A.D.3d 866, 867). "'The law is well settled that, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt'" (Ditmid Holdings, LLC v JPMorgan Chase Bank, N.A., 180 A.D.3d at 1003, quoting EMC Mtge. Corp. v Patella, 279 A.D.2d 604, 605). Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the holder of the note elects in the complaint to call due the entire amount secured by the mortgage, or through an unequivocal acceleration notice transmitted to the borrower (see Freedom Mtge. Corp. v Engel, 37 N.Y.3d 1, 25-27; GMAT Legal Title Trust 2014-1 v Kator, 213 A.D.3d 915, 916). A notice of acceleration of a debt must be clear and unequivocal, and to constitute such clear and unequivocal acceleration of a debt, the notice must demand an immediate payment of the entire outstanding loan and not refer to acceleration only as a future event (see Freedom Mtge. Corp. v Engel, 37 N.Y.3d at 25; U.S. Bank N.A. v Greenberg, 170 A.D.3d 1237, 1240).
Here, the plaintiff failed to establish her prima facie entitlement to judgment on the complaint as a matter of law. The language in a 2008 "Notice of Intent to Foreclose," that the mortgage debt would be accelerated if the borrower did not pay the arrears as set forth in the notice by September 19, 2008, was merely an expression of future intent that fell short of an actual acceleration (see Ocwen Loan Servicing, LLC v Sirianni, 202 A.D.3d 702; Milone v U.S. Bank N.A., 164 A.D.3d 145, 154; Bank of Am., N.A. v Luma, 157 A.D.3d 1106; 21st Mtge. Corp. v Adames, 153 A.D.3d 474). The notice was not clear and unequivocal, as future intentions may always be changed in the interim (see Milone v U.S. Bank N.A., 164 A.D.3d at 154).
The plaintiff's alternate contention that the mortgage debt was accelerated in 2009, by the commencement of a mortgage foreclosure action that was subsequently discontinued, is raised for the first time on appeal, and we decline to consider it (see LNV Corp. v Allison, 206 A.D.3d 710, 714; Wells Fargo Bank v Islam, 174 A.3d 670, 671-672).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the complaint, without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
In light of the foregoing determination, the defendant's remaining contentions need not be reached.
IANNACCI, J.P., CHAMBERS, WOOTEN and VOUTSINAS, JJ., concur.