Opinion
CA 06-00014.
September 29, 2006.
Appeal from an order of the Supreme Court, Monroe County (Andrew V. Siracuse, J.), entered March 29, 2005. The order denied plaintiff's motion for summary judgment.
ELLIOTT, STERN CALABRESE, LLP, ROCHESTER (LORENZO NAPOLITANO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
PAUL M. WHITBECK, ROCHESTER, FOR DEFENDANT-RESPONDENT.
Present — Hurlbutt, J.P., Scudder, Gorski and Green, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: Plaintiff commenced this action pursuant to RPAPL 1501 (4) seeking to cancel and discharge a mortgage based, on the expiration of the six-year statute of limitations applicable to mortgage foreclosure actions ( see CPLR 213). Supreme Court erred in denying plaintiff's motion for summary judgment. Plaintiff established his entitlement to judgment as a matter of law by submitting evidence establishing that more than six years had elapsed since he defaulted on the mortgage. Plaintiff thereby established that a mortgage foreclosure action commenced by defendant would be time-barred ( see id.; Phalen-Sobolevsky v Mullin, 26 AD3d 806; Corrado v Petrone, 139 AD2d 483), and defendant failed to raise a triable issue of fact ( see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). We therefore reverse the order, grant plaintiff's motion and remit the matter to Supreme Court to grant judgment consistent with this decision ( see RPAPL 1501).