Opinion
10032 Index 32225/16E
10-10-2019
WELLS FARGO BANK, N.A., Plaintiff–Respondent, v. Shayne LIBURD also known as Shayne J. Liburd, et al., Defendants–Appellants, New York City Parking Violations Bereau, et al., Defendants.
Richland & Falkowski, PLLC, Washingtonville (Daniel H. Richland of counsel), for appellants. Reed Smith LLP, New York (Joseph B. Teig of counsel), for respondent.
Richland & Falkowski, PLLC, Washingtonville (Daniel H. Richland of counsel), for appellants.
Reed Smith LLP, New York (Joseph B. Teig of counsel), for respondent.
Manzanet–Daniels, J.P., Kern, Oing, Singh, JJ.
Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered March 13, 2018, which denied the motion of defendants Shayne Liburd a/k/a Shayne J. Liburd and Daldan Inc. (defendants) to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendants sustained their initial burden of demonstrating, prima facie, that this action was untimely because more than six years had passed from the date that the debt on the mortgage was accelerated ( CPLR 213[4] ; see MTGLQ Invs., LP v. Wozencraft, 172 A.D.3d 644, 102 N.Y.S.3d 25 [1st Dept. 2019] ). In opposition, plaintiff failed to raise a question of fact as to whether the action is timely. Plaintiff's argument that it affirmatively revoked its election to accelerate the mortgage within the six-year limitations period by discontinuing the prior foreclosure action is unavailing as a mere discontinuance of a prior foreclosure action, without more, is insufficient to constitute an affirmative act to revoke a lender's election to accelerate (see HSBC Bank NA v. Vaswani, 174 A.D.3d 514, 101 N.Y.S.3d 852 [2d Dept. 2019] ; Vargas v. Deutsche Bank Natl. Trust Co., 168 A.D.3d 630, 93 N.Y.S.3d 32 [1st Dept. 2019] ; HSBC Bank USA v. Kirschenbaum, 159 A.D.3d 506, 507, 73 N.Y.S.3d 41 [1st Dept. 2018] ). Plaintiff also failed to put forth any facts that show that the statute of limitations was tolled because plaintiff was a mortgagee in possession (see MTGLQ Invs., LP v. Wozencraft, 172 A.D.3d at 645, 102 N.Y.S.3d 25 ).