Opinion
2016–00868 Index No. 706506/15
05-23-2018
Mohammad SOROUSH, respondent, v. CITIMORTGAGE, INC., appellant, et al., defendants.
Akerman LLP, New York, N.Y. (Jordan Smith of counsel), for appellant. Brian McCaffrey, Attorney at Law, P.C., Jamaica, NY, for respondent.
Akerman LLP, New York, N.Y. (Jordan Smith of counsel), for appellant.
Brian McCaffrey, Attorney at Law, P.C., Jamaica, NY, for respondent.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action pursuant to RPAPL 1501(4) to cancel and discharge a mortgage, the defendant Citimortgage, Inc., appeals from an order of the Supreme Court, Queens County (Salvatore Modica, J.), dated January 7, 2016, which, in effect, converted its motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it to a motion for summary judgment dismissing the complaint insofar as asserted against it, and thereupon denied the motion, and, in effect, searched the record and awarded summary judgment on the complaint to the plaintiff.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof which, in effect, converted the motion of the defendant Citimortgage, Inc., pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it to a motion for summary judgment dismissing the complaint insofar as asserted against it, and thereupon denied the motion, (2) by deleting the provision thereof which, in effect, searched the record and awarded summary judgment on the complaint to the plaintiff, and (3) by adding a provision thereto denying the motion of the defendant Citimortgage, Inc., pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it; as so modified, the order is affirmed, without costs or disbursements.
In 2008, the plaintiff executed a mortgage on real property located in Bellrose as security for a note. On March 17, 2009, the defendant Citimortgage, Inc. (hereinafter Citimortgage), commenced a foreclosure action alleging that, as a result of the plaintiff's failure to pay the monthly installment due December 2008, Citimortgage was "elect[ing] to call due the entire amount secured by the mortgage." The Supreme Court dismissed the foreclosure action for lack of personal jurisdiction.
In June 2015, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge the subject mortgage, alleging that the applicable six-year statute of limitations to foreclose the mortgage had expired on March 17, 2015. Citimortgage moved pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it, arguing that it had timely revoked its acceleration of the mortgage debt. In support thereof, Citimortgage submitted a letter dated March 13, 2015, addressed to the plaintiff, stating that "[t]he maturity of the Loan is hereby de-accelerated, immediate payment of all sums owed is hereby withdrawn, and the Loan is re-instituted as an installment loan." The plaintiff opposed the motion. The Supreme Court, in effect, converted the motion to a motion for summary judgment and, thereupon, denied the motion. In addition, the court, in effect, searched the record and awarded summary judgment on the complaint to the plaintiff, canceling and discharging the mortgage pursuant to RPAPL 1501(4).
CPLR 3211(c) provides that, "[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment." Here, the Supreme Court should not have converted Citimortgage's motion pursuant to CPLR 3211(a) to dismiss the complaint to one for summary judgment without providing "adequate notice to the parties" ( CPLR 3211[c] ; see Sunset Cafe´, Inc. v. Mett's Surf & Sports Corp., 103 A.D.3d 707, 959 N.Y.S.2d 700 ; Saleh v. New York Post, 78 A.D.3d 1149, 915 N.Y.S.2d 571 ; Neurological Servs. of Queens, P.C. v. Farmingville Family Med. Care, 63 A.D.3d 703, 879 N.Y.S.2d 731 ; Moutafis v. Osborne, 18 A.D.3d 723, 795 N.Y.S.2d 716 ; Steiner v. Lazzaro & Gregory, 271 A.D.2d 596, 706 N.Y.S.2d 157 ; Glendora v. Kofalt, 224 A.D.2d 485, 637 N.Y.S.2d 780 ; Pearsal Props. Corp. v. Arzina Realty Corp., 139 A.D.2d 638, 527 N.Y.S.2d 277 ; Camarda v. Vanderbilt, 100 A.D.2d 836, 473 N.Y.S.2d 831 ). None of the recognized exceptions to the notice requirement is applicable here. No specific request for summary judgment was made by any party, the parties did not deliberately chart a summary judgment course, and the action did not exclusively involve issues of law which were fully appreciated and argued by the parties (see Sunset Cafe´, Inc. v. Mett's Surf & Sports Corp., 103 A.D.3d at 708, 959 N.Y.S.2d 700 ; Moutafis v. Osborne, 18 A.D.3d at 724, 795 N.Y.S.2d 716 ). Moreover, since Citimortgage's motion to dismiss the complaint should not have been converted to one for summary judgment, the court also should not have searched the record and awarded summary judgment to the plaintiff (see Moutafis v. Osborne, 18 A.D.3d at 724, 795 N.Y.S.2d 716 ).
Applying the standards governing a motion to dismiss a complaint pursuant to CPLR 3211 (see Sunset Cafe´, Inc. v. Mett's Surf & Sports Corp., 103 A.D.3d at 708, 959 N.Y.S.2d 700 ; Neurological Servs. of Queens, P.C. v. Farmingville Family Med. Care, 63 A.D.3d at 704, 879 N.Y.S.2d 731 ), the Supreme Court should have denied Citimortgage's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it on the ground that the evidence it submitted did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) and did not utterly refute the factual allegations of the complaint and conclusively establish a defense to the claims as a matter of law (see Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 682, 48 N.Y.S.3d 450 ; Mendelovitz v. Cohen, 37 A.D.3d 670, 830 N.Y.S.2d 577 ). "In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as ‘documentary evidence,’ it must be unambiguous, authentic, and undeniable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case. However, neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" ( Eisner v. Cusumano Constr., Inc., 132 A.D.3d 940, 941–942, 18 N.Y.S.3d 683 [internal quotation marks and citations omitted]; see Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569 ). Furthermore, "[a] lender may revoke its election to accelerate the mortgage, but 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" ( NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d 1068, 1069–1070, 58 N.Y.S.3d 118 ; see Soffer v. U.S. Bank, N.A, 2016 N.Y. Slip Op. 32697[U], 2016 WL 8652779 [Sup. Ct., Kings County] ; 1–4 Bergman on New York Mortgage Foreclosures § 4.03; cf. U.S. Bank N.A. v. Barnett, 151 A.D.3d 791, 56 N.Y.S.3d 255 ; Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 A.D.3d 985, 986, 41 N.Y.S.3d 738 ).
Here, the letter dated March 13, 2015, did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) (see Fox Paine & Co., LLC v. Houston Cas. Co., 153 A.D.3d 673, 60 N.Y.S.3d 294 ; Feldshteyn v. Brighton Beach 2012, LLC, 153 A.D.3d 670, 61 N.Y.S.3d 60 ; Prott v. Lewin & Baglio, LLP, 150 A.D.3d 908, 55 N.Y.S.3d 98 ; Anderson v. Armentano, 139 A.D.3d 769, 33 N.Y.S.3d 294 ; Lindsay v. Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 A.D.3d 790, 12 N.Y.S.3d 124 ; Jones v. Rochdale Vil., Inc., 96 A.D.3d 1014, 948 N.Y.S.2d 80 ; Fontanetta v. John Doe 1, 73 A.D.3d at 87, 898 N.Y.S.2d 569 ). Moreover, the evidentiary material did not utterly refute the plaintiff's allegations that the statute of limitations expired on March 17, 2015 (see Sabre Real Estate Group, LLC v. Ghazvini, 140 A.D.3d 724, 35 N.Y.S.3d 109 ; All Is. Media, Inc. v. Creative AD Worx, Inc., 79 A.D.3d 677, 912 N.Y.S.2d 293 ; Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 913 N.Y.S.2d 668 ). As evidence that its revocation preceded the expiration of the statute of limitations, Citimortgage submitted the letter dated March 13, 2015, and relied on language in paragraph 15 of the mortgage stating that notice "is considered given to [Borrower] when mailed by first class mail." However, nothing on the face of the letter establishes when it was actually mailed, and no independent evidence of the mailing date was submitted (see Matsil v. Utica First Ins. Co., 150 A.D.3d 982, 55 N.Y.S.3d 304 ). Accordingly, for the purposes of this CPLR 3211(a) motion, the letter does not demonstrate that Citimortgage's claimed affirmative act of revocation was timely interposed (cf. Soffer v. U.S. Bank, N.A. , 2016 N.Y. Slip Op. 32697[U], 2016 WL 8652779 ), and thus does not conclusively establish a defense to the plaintiff's claims as a matter of law (see Mendelovitz v. Cohen, 37 A.D.3d at 671, 830 N.Y.S.2d 577 ).
LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.