HSBC Bank United States, N.A. v. Spitz

201 A.D.3d 708

156 N.Y.S.3d 867 (Mem)

HSBC BANK USA, N.A., appellant,

v.Yisrael SPITZ, respondent, et al., defendants.

2018–04513, 2018–10128

Index No. 514229/15

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

Argued—November 4, 2021

January 12, 2022

Phillips Lytle LLP, Buffalo, NY (Preston L. Zarlock, Patricia M. Pirri, and Sean C. McPhee of counsel), for appellant.

Richard A. Klass, Brooklyn, NY, for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, LINDA CHRISTOPHER, LARA J. GENOVESI, 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 February 13, 2018, and (2) an order of the same court dated June 19, 2018. The order dated February 13, 2018, denied the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendant Yisrael Spitz, to dismiss his counterclaims, and for an order of reference. The order dated June 19, 2018, denied the plaintiff's motion for leave to renew and reargue its prior motion for summary judgment on the complaint insofar as asserted against the defendant Yisrael Spitz, to dismiss his counterclaims, and for an order of reference.

ORDERED that the order dated February 13, 2018, is reversed, on the law, and the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendant Yisrael Spitz, to dismiss his counterclaims, and for an order of reference is granted; and it is further,

ORDERED that the appeal from so much of the order dated June 19, 2018, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the appeal from so much of the order dated June 19, 2018, as denied that branch of the plaintiff's motion which was for leave to renew is dismissed as academic in light of our determination on the appeal from the order dated February 13, 2018; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In November 2015, HSBC Bank USA, N.A. (hereinafter HSBC), commenced this action (hereinafter the 2015 action) against the defendant Yisrael Spitz (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain property in Brooklyn. The defendant interposed an answer with affirmative defenses asserting, among other things, that the action was barred by the statute of limitations, and counterclaims, inter alia, to quiet title. HSBC moved for summary judgment on the complaint insofar as asserted against the defendant, to dismiss his counterclaims, and for an order of reference. The defendant opposed the motion, arguing that the 2015 action was time-barred since the debt had previously been accelerated in 2008, when Mortgage Electronic Registration Systems (hereinafter MERS), as nominee for HSBC, commenced a prior action to foreclose the mortgage (hereinafter the 2008 action). In an order dated February 13, 2018, the Supreme Court denied HSBC's motion. HSBC then moved for leave to renew and reargue its prior motion. In an order dated June 19, 2018, the court denied the motion for leave to renew and reargue. HSBC appeals from both orders.

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). "When a mortgage is payable in installments, which is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitations on the entire debt" ( Deutsche Bank Trust Co. Ams. v. Marous, 186...