Opinion
2019-05925 Index No. 515591/18
07-14-2021
FEDERAL NATIONAL MORTGAGE ASSOCIATION, appellant, v. Pinchos WOOLSTONE, respondent, et al., defendants.
RAS Boriskin, LLC, Westbury, N.Y. (McCarter & English, LLP [Adam M. Swanson and Jessie D. Bonaros ], of counsel), for appellant. Swidler & Messi, LLP, New York, N.Y. (Michael Messi of counsel), for respondent.
RAS Boriskin, LLC, Westbury, N.Y. (McCarter & English, LLP [Adam M. Swanson and Jessie D. Bonaros ], of counsel), for appellant.
Swidler & Messi, LLP, New York, N.Y. (Michael Messi of counsel), for respondent.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, BETSY BARROS, VALERIE BRATHWAITE NELSON, 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 March 4, 2019. The order, insofar as appealed from, granted that branch of the motion of the defendant Pinchos Woolstone which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In this mortgage foreclosure action, in support of that branch of his motion which was to dismiss the complaint as time-barred, the defendant Pinchos Woolstone (hereinafter the defendant) established that the six-year statute of limitations (see CPLR 213[4] ) began to run on the entire debt in January 2010, when the plaintiff commenced an action (hereinafter the prior action) to foreclose the mortgage (see Milone v. U.S. Bank N.A., 164 A.D.3d 145, 152, 83 N.Y.S.3d 524 ). In an order dated September 15, 2014, the Supreme Court, inter alia, granted the defendant's cross motion to dismiss the complaint in the prior action insofar as asserted against him for lack of personal jurisdiction. Since the instant action was commenced on July 31, 2018, more than six years after the prior action was commenced, the defendant sustained his initial burden of demonstrating, prima facie, that the instant action was untimely (see Deutsche Bank Trust Co. Ams. v. Smith, 170 A.D.3d 660, 660–661, 93 N.Y.S.3d 613 ).
In opposition, the plaintiff failed to raise an issue of fact as to whether the instant action was timely (see Christiana Trust v. Barua, 184 A.D.3d 140, 151, 125 N.Y.S.3d 420 ; Wells Fargo Bank, N.A. v. Burke, 155 A.D.3d 668, 669–670, 64 N.Y.S.3d 228 ). Contrary to the plaintiff's contention, the fact that the complaint in the prior action was dismissed as against the defendant for failure to effectuate personal service upon him does not invalidate the plaintiff's election to exercise its right to accelerate the maturity of the underlying debt (see Albertina Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472, 476, 180 N.E. 176 ; MSMJ Realty, LLC v. DLJ Mtge. Capital, Inc., 157 A.D.3d 885, 887, 69 N.Y.S.3d 870 ; Beneficial Homeowner Serv. Corp. v. Tovar, 150 A.D.3d 657, 658, 55 N.Y.S.3d 59 ). Moreover, neither the dismissal of the complaint in the first action nor the cancellation of the notice of pendency in the first action constituted an affirmative act by the lender to revoke its election to accelerate (see MSMJ Realty, LLC v. DLJ Mtge. Capital, Inc., 157 A.D.3d at 887, 69 N.Y.S.3d 870 ; Clayton Natl., Inc. v. Guldi, 307 A.D.2d 982, 763 N.Y.S.2d 493 ). Furthermore, the plaintiff's contention that the mailing of a notice of default in February 2015, and 90–day notices pursuant to RPAPL 1304 in March 2018, after the complaint in the prior action was dismissed, constituted a revocation of the prior acceleration is also without merit (see U.S. Bank N.A. v. Leone, 175 A.D.3d 1452, 1454, 109 N.Y.S.3d 123 ; Milone v. U.S. Bank N.A., 164 A.D.3d at 154, 83 N.Y.S.3d 524 ).
Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred.
The plaintiff's remaining contentions, raised for the first time on appeal, are not properly before this Court (see Aprile–Sci v. St. Raymond of Penyafort R.C. Church, 151 A.D.3d 671, 673, 55 N.Y.S.3d 421 ).
RIVERA, J.P., MILLER, BARROS and BRATHWAITE NELSON, JJ., concur.