HSBC Bank, N.A. v. Vaswani

174 A.D.3d 514

101 N.Y.S.3d 852 (Mem)

HSBC BANK, N.A., Respondent,

v.Danny VASWANI, et al., Appellants, et al., Defendants.

2016–08317

Index No. 9492/15

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

Submitted—February 5, 2019

July 3, 2019

R. David Marquez, P.C., Mineola, N.Y. (Michael B. Wolk of counsel), for appellants.

Knuckles Komosinski & Manfro, LLP, Elmsford, N.Y. (Allison J. Sanders of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Danny Vaswani and Jethmal Vaswani appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered June 10, 2016. The order, insofar as appealed from, denied that branch of their motion which was pursuant to CPLR 3211(a)(5), in effect, to dismiss the action insofar as asserted against them as barred by the statute of limitations.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Danny Vaswani and Jethmal Vaswani which was pursuant to CPLR 3211(a)(5), in effect, to dismiss the action insofar as asserted against them is granted.

In April 2009, the plaintiff commenced an action (hereinafter the prior action) against the defendants Danny Vaswani and Jethmal Vaswani (hereinafter together the defendants), among others, to foreclose a mortgage encumbering certain property in North Hempstead. By order dated August 9, 2013, the prior action was discontinued without prejudice to the parties.

On or about October 29, 2015, the plaintiff commenced this action to foreclose the mortgage. The defendants moved, inter alia, pursuant to CPLR 3211(a)(5), in effect, to dismiss the action insofar as asserted against them as barred by the statute of limitations. The plaintiff opposed the motion, arguing that it affirmatively revoked its election to accelerate the mortgage debt by voluntarily discontinuing the prior action. By order entered June 10, 2016, the Supreme Court, among other things, denied that branch of the defendants' motion. The defendants appeal.

A mortgage foreclosure action is subject to a six-year statute of limitations (see CPLR 213[4] ). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt" ( Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 867, 39 N.Y.S.3d 491 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ). Acceleration occurs, inter alia, by the commencement of a foreclosure action (see Fannie Mae v. 133 Mgt., LLC, 126 A.D.3d 670, 670, 2 N.Y.S.3d 361 ; Clayton Natl. v. Guldi, 307 A.D.2d 982, 982, 763 N.Y.S.2d 493 ). "A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action" ( NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d 1068, 1069–1070, 58 N.Y.S.3d 118 ; see Fed. Natl. Mtge. Assn. v. Schmitt, 172 A.D.3d 1324, 99 N.Y.S.3d 717 [2d Dept. 2019] ; EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 606, 720 N.Y.S.2d 161 ).

Here, the defendants established, prima facie, that the action was untimely insofar as asserted against them (see Deutsche Bank Natl. Trust Co. v. Adrian, 157 A.D.3d 934, 935, 69 N.Y.S.3d 706 ; U.S. Bank N.A. v. Martin, 144 A.D.3d 891, 892, 41 N.Y.S.3d 550 ). The filing of the summons and complaint in the prior action on April 29, 2009, constituted a valid election by the plaintiff to accelerate the mortgage debt (see Deutsche Bank Natl. Trust Co. v. Adrian, 157 A.D.3d at 935, 69 N.Y.S.3d 706 ). Thus, the six-year limitations period had expired when the plaintiff commenced this action on October 29, 2015.

The...