Bank of N.Y. Mellon Trust Co. v. Bloom

206 A.D.3d 871

171 N.Y.S.3d 135

BANK OF NEW YORK MELLON TRUST COMPANY, N.A., etc., appellant,

v.Joseph BLOOM, respondent, et al., defendants.

2018–11778, 2020–08683

Index No. 522710/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 7, 2022

June 22, 2022

McCabe, Weisberg & Conway, LLC, New Rochelle, NY (Kenneth O. Britt of counsel), for appellant.

Richland & Falkowski, PLLC, Washingtonville, NY (Daniel H. Richland of counsel), for respondent.

MARK C. DILLON, J.P., ANGELA G. IANNACCI, REINALDO E. RIVERA, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Noach Dear, J.), dated July 3, 2018, and (2) a judgment of the same court entered October 7, 2020. The order granted the motion of the defendant Joseph Bloom for summary judgment dismissing the complaint insofar as asserted against him as time-barred. The judgment, insofar as appealed from, upon the order, is in favor of that defendant and against the plaintiff dismissing the complaint insofar as asserted against that defendant.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant Joseph Bloom.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

In March 2007, the defendant Joseph Bloom (hereinafter the defendant) borrowed $504,000 from JPMorgan Chase Bank, N.A. The loan was secured by a mortgage on a residential condominium unit in Brooklyn. The defendant allegedly defaulted under the terms of the note and mortgage by failing to pay the installments of principal and interest due October 1, 2008, and thereafter. The note and mortgage were subsequently assigned to the plaintiff.

In March 2009, the plaintiff commenced an action to foreclose the mortgage (hereinafter the 2009 action). By order dated November 7, 2013, the Supreme Court conditionally dismissed the complaint in the 2009 action unless the plaintiff filed a note of issue or otherwise moved for entry of judgment within 90 days. Thereafter, the complaint in the 2009 action was administratively dismissed.

In December 2016, the plaintiff commenced this action to foreclose the mortgage. After serving his answer, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him as time-barred. The plaintiff opposed the motion. By order dated July 3, 2018, the Supreme Court granted the defendant's motion. On October 7, 2020, a judgment was entered, inter alia, dismissing the complaint insofar as asserted against the defendant. The plaintiff appeals.

An action to foreclose a mortgage is subject to a six-year statute of limitations (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 (see Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 867, 39 N.Y.S.3d 491 ; Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ). However, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the...