Opinion
2017–00696 Index No. 30744/15
11-13-2019
21ST MORTGAGE CORPORATION, etc., Appellant, v. Ramjit BALLIRAJ, et al., Respondents, et al., Defendants.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany, N.Y. (Thomas E. Mercure, Michael J. Catalfimo, and Courtney E. Green of counsel), for appellant. Daniel E. Bertolino, P.C., Upper Nyack, N.Y. (Jonathan B. Schloss of counsel), for respondents.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany, N.Y. (Thomas E. Mercure, Michael J. Catalfimo, and Courtney E. Green of counsel), for appellant.
Daniel E. Bertolino, P.C., Upper Nyack, N.Y. (Jonathan B. Schloss of counsel), for respondents.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, HECTOR D. LASALLE, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Rockland County (Victor J. Alfieri, Jr., J.), dated November 7, 2016. The order granted the motion of the defendants Ramjit Balliraj and Nirmala Balliraj pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
In February 2015, the plaintiff commenced this action to foreclose a mortgage encumbering certain real property located in Pearl River. The defendants Ramjit Balliraj and Nirmala Balliraj (hereinafter together the defendants) moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the ground, among others, that the action was time-barred. The plaintiff opposed the motion. In an order dated November 7, 2016, the Supreme Court granted the defendants' motion to dismiss the complaint insofar as asserted against them on the ground that the action was time-barred. The plaintiff appeals.
"A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired" ( Texeria v. BAB Nuclear Radiology, P.C., 43 A.D.3d 403, 405, 840 N.Y.S.2d 417 ; see Bank of N.Y. Mellon v. Dieudonne, 171 A.D.3d 34, 36, 96 N.Y.S.3d 354 ; Minskoff Grant Realty & Mgt. Corp. v. 211 Mgr. Corp., 71 A.D.3d 843, 845, 897 N.Y.S.2d 485 ). "The time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed" ( CPLR 203[a] ). Accordingly, "[t]o meet [his or her] burden, a defendant must establish when the causes of action accrued" ( Philip F. v. Roman Catholic Diocese of Las Vegas, 70 A.D.3d 765, 766, 894 N.Y.S.2d 125 ; see Bank of N.Y. Mellon v. Dieudonne, 171 A.D.3d at 36, 96 N.Y.S.3d 354 ; Swift v. New York Med. Coll., 25 A.D.3d 686, 687, 808 N.Y.S.2d 731 ).
"As a general matter, an action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding ... the action" ( Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ; 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" ( Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 867, 39 N.Y.S.3d 491 ; see Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 982, 943 N.Y.S.2d 540 ; Wells Fargo Bank, N.A. v. Cohen, 80 A.D.3d 753, 754, 915 N.Y.S.2d 569 ).
Where a mortgage is payable in installments, the note and mortgage may contain an acceleration provision that gives the lender "the option to demand due the entire balance of principal and interest upon the occurrence of certain events delineated in the mortgage" (1 Bergman on New York Mortgage Foreclosures § 4.02; see Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 982–983, 943 N.Y.S.2d 540 ). Where the terms of the note and mortgage provide that "the acceleration of the maturity of a mortgage debt on default is made optional with the holder of the note and mortgage, some affirmative action must be taken evidencing the holder's election to take advantage of the accelerating provision, and until such action has been taken the provision has no operation" ( Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 982–983, 943 N.Y.S.2d 540 ; see Bank of N.Y. Mellon v. Dieudonne, 171 A.D.3d at 37, 96 N.Y.S.3d 354 ; Esther M. Mertz Trust v. Fox Meadow Partners, 288 A.D.2d 338, 340, 734 N.Y.S.2d 77 ; see also 1 Bergman on New York Mortgage Foreclosures §§ 4.05, 5.11[2]; cf. Phoenix Acquisition Corp. v. Campcore, Inc., 81 N.Y.2d 138, 142–144, 596 N.Y.S.2d 752, 612 N.E.2d 1219 ).
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" ( Milone v. U.S. Bank N.A., 164 A.D.3d 145, 152, 83 N.Y.S.3d 524 ). Once the holder of the note and mortgage has exercised its contractual option to accelerate the mortgage debt in accordance with the terms of the note and mortgage, "the entire amount is due and the Statute of Limitations begins to run on the entire debt" ( 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 at 37–38, 96 N.Y.S.3d 354 ; Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d at 867, 39 N.Y.S.3d 491 ; Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 982, 943 N.Y.S.2d 540 ). However, "[w]here ... the prior action [was] dismissed on the ground that the plaintiff lacked standing, the purported acceleration is a nullity, and the statute of limitations does not begin to run at the time of the purported acceleration" ( U.S. Bank N.A. v. Auguste, 173 A.D.3d 930, 932, 103 N.Y.S.3d 481 ; see Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 983, 943 N.Y.S.2d 540 ; EMC Mtge. Corp. v. Suarez, 49 A.D.3d 592, 593, 852 N.Y.S.2d 791 ).
Here, the defendants demonstrated that the plaintiff's predecessor in interest validly elected to accelerate the mortgage debt in 2006 by commencing a prior foreclosure action against them in which the predecessor in interest sought payment of the full balance due (see Deutsche Bank Natl. Trust Co. v. Adrian, 157 A.D.3d 934, 935, 69 N.Y.S.3d 706 ; U.S. Bank N.A. v. Martin, 144 A.D.3d 891, 892, 41 N.Y.S.3d 550 ). Since the defendants demonstrated, as a matter of law, that the acceleration of the mortgage debt occurred more than six years prior to the commencement of the present action, the defendants sustained their initial burden of demonstrating, prima facie, that the action was untimely. In opposition, the plaintiff failed to raise a question of fact.
The plaintiff's remaining contention is not properly before this Court and, in any event, without merit (see Bank of N.Y. Mellon v. Dieudonne, 171 A.D.3d at 39–40, 96 N.Y.S.3d 354 ).
Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the ground that the action was time-barred.
BALKIN, J.P., COHEN, MILLER and LASALLE, JJ., concur.