Deutsche Bank Nat'l Trust Co. v. Gendelman

195 A.D.3d 792

145 N.Y.S.3d 812 (Mem)

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.Tanya GENDELMAN, et al., defendants;

Laurel Avenue Investors Corp., appellant.

2018–09789

Index No. 3860/11

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

Submitted—April 12, 2021

June 16, 2021

Avinoam Rosenfeld, Lawrence, NY, for appellant.

Hinshaw & Culbertson, LLP, New York, N.Y. (Benjamin Noren of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a consolidated action to foreclose a consolidated mortgage, the defendant Laurel Avenue Investors Corp. appeals from an order of the Supreme Court, Kings County (Mark Partnow, J.), dated April 20, 2018. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike its answer, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In January 2006, the defendants Tanya Gendelman and Igor Mykhalkin (hereinafter together the mortgagors) executed a consolidation, extension, and modification agreement pursuant to which a consolidated note was executed in the sum of $580,000, secured by a consolidated mortgage lien against the subject property, located in Brooklyn. On January 10, 2011, the consolidated note and mortgage were assigned to the plaintiff, Deutsche Bank National Trust Company.

The mortgagors allegedly failed to make a monthly mortgage payment that was due on April 1, 2007, and subsequent payments. In February 2011, the plaintiff commenced a foreclosure action against the mortgagors, among others (hereinafter the first action).

In December 2011, the subject property allegedly was sold to Laurel Avenue Investors Corp. (hereinafter Laurel Avenue). In January 2012, the Supreme Court granted Mykhalkin's motion to dismiss the complaint in the first action insofar as asserted against him for lack of proper service. In December 2014, the plaintiff commenced a second action to foreclose the consolidated mortgage against Mykhalkin and Laurel Avenue, among others (hereinafter the second action). In December 2016, the plaintiff moved, inter alia, to consolidate the first action and the second action, for summary judgment on the complaint insofar as asserted against Laurel Avenue, to strike its answer, and for an order of reference. Laurel Avenue opposed the motion, contending, among other things, that the statute of limitations had expired. In an order dated April 20, 2018, the court granted the plaintiff's motion. Laurel Avenue appeals.

Laurel Avenue's contention that the Supreme Court...