Opinion
2018–13123 Index No. 509620/16
09-16-2020
WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., Appellant, v. Nurul ALAM, etc., Respondent, et al., Defendants.
Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (John E. Brigandi of counsel), for appellant.
Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (John E. Brigandi of counsel), for appellant.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated September 17, 2018. The order, insofar as appealed from, granted the cross motion of the defendant Nurul Alam, in effect, for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). " ‘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 1002, 1003, 120 N.Y.S.3d 393, quoting EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 ; see Bank of N.Y. Mellon v. Dieudonne, 171 A.D.3d 34, 37, 96 N.Y.S.3d 354 ). "The acceleration of a mortgage debt may occur when the holder of the note ‘commences an action to foreclose upon [the] note and mortgage and seeks, in the complaint, payment of the full balance due’ " ( 21st Mtge. Corp. v. Balliraj, 177 A.D.3d 687, 688, 111 N.Y.S.3d 347, quoting Milone v. U.S. Bank N.A., 164 A.D.3d 145, 152, 83 N.Y.S.3d 524 ).
Here, in support of his cross motion, the defendant Nurul Alam established that the six-year statute of limitations began to run on the entire mortgage debt on July 28, 2009, when the plaintiff's predecessor in interest commenced a prior foreclosure action against, among others, Alam, which was dismissed as abandoned pursuant to CPLR 3215(c) (see Deutsche Bank Natl. Trust Co. v. Gordon, 179 A.D.3d 770, 773, 117 N.Y.S.3d 688 ; Bank of N.Y. Mellon v. Alli, 175 A.D.3d 1472, 1473, 109 N.Y.S.3d 398 ; Deutsche Bank Natl. Trust Co. v. Adrian, 157 A.D.3d 934, 935, 69 N.Y.S.3d 706 ). Since the plaintiff did not commence the instant foreclosure action until June 7, 2016, which was more than six years after acceleration of the debt, Alam met his initial burden of demonstrating, prima facie, that the instant action was untimely (see Ditech Fin., LLC v. Naidu, 175 A.D.3d 1387, 1389, 109 N.Y.S.3d 196, lv granted 34 N.Y.3d 910, 2020 WL 769004 ; HSBC Bank USA, N.A. v. Gold, 171 A.D.3d 1029, 1030–1031, 98 N.Y.S.3d 293 ; Freedom Mtge. Corp. v. Engel, 163 A.D.3d 631, 633, 81 N.Y.S.3d 156, lv granted in part 33 N.Y.3d 1039, 103 N.Y.S.3d 12, 126 N.E.3d 1052 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Bank of N.Y. Mellon v. Alli, 175 A.D.3d at 1474, 109 N.Y.S.3d 398 ; Bank of N.Y. Mellon v. Dieudonne, 171 A.D.3d at 39, 96 N.Y.S.3d 354 ; Deutsche Bank Natl. Trust Co. v. Adrian, 157 A.D.3d at 935–936, 69 N.Y.S.3d 706 ).
The plaintiff's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination to grant Alam's cross motion, in effect, for summary judgment dismissing the complaint insofar as asserted against him as barred by the statute of limitations.
DILLON, J.P., CHAMBERS, COHEN and DUFFY, JJ., concur.