Opinion
2019-06771 Index No. 518653/17
04-21-2021
Demona C. MILLS, appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent.
LeNoir Law Firm, PLLC, New York, N.Y. (S. John LeNoir of counsel), for appellant. Knuckles, Komosinski & Manfro, LLP, Elmsford, N.Y. (Gregg L. Verrilli of counsel), for respondent.
LeNoir Law Firm, PLLC, New York, N.Y. (S. John LeNoir of counsel), for appellant.
Knuckles, Komosinski & Manfro, LLP, Elmsford, N.Y. (Gregg L. Verrilli of counsel), for respondent.
WILLIAM F. MASTRO, A.P.J., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated April 3, 2019. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On September 27, 2017, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage on the ground that the six-year period for the commencement of an action to foreclose the subject mortgage had expired (see CPLR 213[4] ). The Supreme Court, inter alia, denied that branch of the plaintiff's motion which was for summary judgment on the complaint. The plaintiff appeals.
The plaintiff demonstrated her prima facie entitlement to judgment as a matter of law on the complaint by establishing that the subject mortgage debt was accelerated in February 2011 by the filing of the complaint in a prior action to foreclose the subject mortgage, which complaint expressly elected to call due the entire amount secured by the mortgage (see Milone v. U.S. Bank N.A., 164 A.D.3d 145, 152, 83 N.Y.S.3d 524 ). However, in opposition, the defendant demonstrated that the subsequent voluntary discontinuance of the foreclosure action constituted a revocation of any such acceleration (see Freedom Mtge. Corp. v. Engel, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2021 N.Y. Slip Op. 01090 ). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the complaint.
In light of our determination, we need not reach the defendant's remaining contentions.
MASTRO, A.P.J., HINDS–RADIX, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.