Fed. Nat'l Mortg. Ass'n v. Walter

199 A.D.3d 889

154 N.Y.S.3d 450 (Mem)

FEDERAL NATIONAL MORTGAGE ASSOCIATION, etc., appellant,

v.Chana T. WALTER, etc., et al., respondents, et al., defendants.

2018–10600

Index No. 33932/16

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

Argued—October 22, 2021

November 17, 2021

Shapiro, DiCaro & Barak, LLC (McCarter & English, LLP, New York, NY [Adam M. Swanson and Jessie Bonaros ], of counsel), for appellant.

Montalbano Condon & Frank P.C., New City, NY (Richard H. Sarajian and Paul S. Baum of counsel), for respondents.

WILLIAM F. MASTRO, J.P., VALERIE BRATHWAITE NELSON, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated June 14, 2018. The order denied the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendants Chana T. Walter and 1 Eleanor Corp., to strike those defendants’ answer, and for an order of reference, and granted those defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them as time-barred.

ORDERED that the order is affirmed, with costs.

In July 2006, the defendant Chana T. Walter executed a note in the sum of $399,200 in favor of First Horizon Home Loan Corporation (hereinafter First Horizon).

The note was secured by a mortgage on real property located in Airmont (hereinafter the subject property).

In February 2009, Walter allegedly defaulted on the loan. On June 15, 2009, First Horizon commenced a foreclosure action against Walter and others. In the complaint, First Horizon "elect[ed] to call due the entire amount secured by the mortgage." A judgment of foreclosure and sale was entered against Walter on or about December 14, 2009, but in an order entered January 21, 2011, the Supreme Court granted Walter's motion to vacate the judgment of foreclosure and sale on the ground that there was no proper service of the summons and complaint upon Walter.

By assignment of mortgage dated March 29, 2013, the mortgage was assigned to the plaintiff. By deed dated March 11, 2014, Walter transferred the subject property to the defendant 1 Eleanor Corp. The deed stated that 1 Eleanor Corp. would assume and pay the mortgage debt on the subject property. However, the deed was only executed by Walter as an individual, and was not executed by Walter on behalf of 1 Eleanor Corp.

On September 19, 2016, the plaintiff commenced this action to foreclose the mortgage against, among others, Walter and 1 Eleanor Corp. (hereinafter together the defendants). The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants’ answer, and for an order of reference. The defendants cross-moved for summary judgment dismissing the complaint insofar as asserted against them as time-barred. In an order dated June 14, 2018, the Supreme Court denied the plaintiff's motion and granted the defendants’ cross motion. The plaintiff appeals.

On appeal, the plaintiff principally argues that the statute of limitations was extended pursuant to General Obligations Law § 17–105 by the deed transferring the subject property from Walter to 1 Eleanor Corp. Although this argument is raised for the first time on appeal, we reach the argument since, contrary to the defendants’ contention, it presents a pure question of law that appears on the face of the record and "could not have...