Opinion
2018-05434 Index No. 1658/17
04-07-2021
HSBC BANK USA, N.A., respondent, v. Lise KING, etc., et al., appellants, et al., defendants.
Ronald D. Weiss, P.C., Melville, NY, for appellants. Knuckles, Komosinski & Manfro, LLP, Elmsford, N.Y. (Jordan J. Manfro of counsel), for respondent.
Ronald D. Weiss, P.C., Melville, NY, for appellants.
Knuckles, Komosinski & Manfro, LLP, Elmsford, N.Y. (Jordan J. Manfro of counsel), for respondent.
REINALDO E. RIVERA, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Lise King and Jeff King appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated February 6, 2018. The order, insofar as appealed from, denied that branch of those defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On March 23, 2017, the plaintiff commenced the instant action to foreclose a mortgage against the appellants, among others. The appellants interposed an answer in which they asserted, inter alia, as an affirmative defense, that the action was barred by the statute of limitations. Subsequently, the appellants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred. In support of their contention that the action was time-barred, the appellants purportedly annexed to their motion, as Exhibit JJ, a default notice letter, dated January 21, 2010, that, according to the appellants, accelerated the debt. The letter allegedly stated, inter alia, that "[i]f you do not cure this default within the specified time period, your obligation for payment of the entire unpaid balance of the loan will be accelerated and become due and payable immediately." The Supreme Court denied that branch of the motion, finding that the appellants' reliance upon the "alleged 1/21/10 letter from the plaintiff to establish acceleration of the debt as of that date is misplaced since their motion is devoid of the purported exhibit (JJ)." This appeal ensued.
An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). " ‘On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired’ " ( U.S. Bank N.A. v. Vitolo, 182 A.D.3d 627, 627–628, 120 N.Y.S.3d 791, quoting Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193, 197, 47 N.Y.S.3d 80 ). " ‘If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period’ " ( U.S. Bank N.A. v. Vitolo, 182 A.D.3d at 628, 120 N.Y.S.3d 791, quoting Barry v. Cadman Towers, Inc., 136 A.D.3d 951, 952, 25 N.Y.S.3d 342 ).
With respect to a mortgage debt 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 (see HSBC Bank USA, N.A. v. Gold, 171 A.D.3d 1029, 1030, 98 N.Y.S.3d 293 ; U.S. Bank N.A. v. Joseph, 159 A.D.3d 968, 970, 73 N.Y.S.3d 238 ). Once a mortgage debt is accelerated, however, the statute of limitations begins to run on the entire debt (see Milone v. U.S. Bank N.A., 164 A.D.3d 145, 151, 83 N.Y.S.3d 524 ; U.S. Bank N.A. v. Joseph, 159 A.D.3d at 970, 73 N.Y.S.3d 238 ). An acceleration of a mortgage debt may occur by means of acceleration notice transmitted to the borrower by the creditor, though to be effective, the acceleration notice to the borrower must be clear and unequivocal (see U.S. Bank N.A. v. Vitolo, 182 A.D.3d at 628, 120 N.Y.S.3d 791 ; Milone v. U.S. Bank N.A., 164 A.D.3d at 152, 83 N.Y.S.3d 524 ; Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 867, 39 N.Y.S.3d 491 ; Sarva v. Chakravorty, 34 A.D.3d 438, 439, 826 N.Y.S.2d 74 ). A "letter discussing acceleration as a possible future event, ... does not constitute an exercise of the mortgage's optional acceleration clause" ( 21st Mtge. Corp. v. Adames, 153 A.D.3d 474, 475, 60 N.Y.S.3d 198 ). Alternatively, acceleration can occur "when a creditor commences an action to foreclose upon a 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 at 152, 83 N.Y.S.3d 524 ; see U.S. Bank Trust, N.A. v. Williams, 168 A.D.3d 1122, 1123, 92 N.Y.S.3d 722 ).
Here, the appellants failed to satisfy their initial burden of demonstrating, prima facie, that the time within which to commence the action had expired (see U.S. Bank N.A. v. Gordon, 176 A.D.3d 1006, 1008, 111 N.Y.S.3d 30 ). Notwithstanding that the appellants stated in their moving papers that the default notice letter dated January 21, 2010, relied upon by them to demonstrate acceleration of the debt, was annexed to their motion papers as Exhibit JJ, it was not annexed thereto, and the Supreme Court was thus unable to consider it (see Wells Fargo Home Mtge., Inc. v. Mercer, 35 A.D.3d 728, 728, 829 N.Y.S.2d 123 ).
In any event, we note that even if the default notice letter dated January 21, 2010, could be considered, the copy of that letter which was included in the record on appeal did not express a clear and unequivocal acceleration of the mortgage debt (see Bank of N.Y. Mellon v. Morris, 172 A.D.3d 1150, 1151, 98 N.Y.S.3d 875 ; FBP 250, LLC v. Wells Fargo Bank, N.A., 164 A.D.3d 1307, 1308, 85 N.Y.S.3d 177 ). Rather, it "was nothing more than a letter discussing acceleration as a possible future event, which does not constitute an exercise of the mortgage's optional acceleration clause" ( 21st Mtge. Corp. v. Adames, 153 A.D.3d at 475, 60 N.Y.S.3d 198 ; see Freedom Mtge. Corp. v. Engel, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2021 N.Y. Slip Op. 01090 ; Bank of N.Y. Mellon v. Maldonado, 170 A.D.3d 1099, 1101, 97 N.Y.S.3d 162 ; North Shore Invs. Realty Group, LLC v. Traina, 170 A.D.3d 737, 738, 95 N.Y.S.3d 277 ). "Since the [appellants] did not contend that any other act by the plaintiff ... accelerated the loan, the burden never shifted to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely" ( North Shore Invs. Realty Group, LLC v. Traina, 170 A.D.3d at 738, 95 N.Y.S.3d 277 [internal quotation marks omitted]).
The plaintiff's remaining contentions are either without merit (see Bank of N.Y. Mellon v. Dieudonne, 171 A.D.3d 34, 39, 96 N.Y.S.3d 354 ) or not properly before this Court.
Accordingly, the Supreme Court properly denied that branch of the appellants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them.
RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.