Ronen, LLC v. Bais Hamedrash Ateres Chaim Hanipoly

221 A.D.3d 741

199 N.Y.S.3d 652

RONEN, LLC, respondent,

v.Bais Hamedrash Ateres Chaim HANIPOLY, appellant, et al., defendants.

2020–05650, 2020–07938

Index No. 510107/19

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

Argued—March 31, 2023

November 8, 2023

Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino and Rosenberg Fortuna & Laitman, LLP [Anthony R. Filosa ], of counsel), for appellant.

Vallely Law PLLC, Syosset, NY (Erick Vallely of counsel), for respondent.

ANGELA G. IANNACCI, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Bais Hamedrash Ateres Chaim Hanipoly appeals from (1) an order of the Supreme Court, Kings County (Noach Dear, J.), dated February 18, 2020, and (2) an order of the same court (Robin K. Sheares, J.) dated October 6, 2020. The order dated February 18, 2020, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Bais Hamedrash Ateres Chaim Hanipoly, to strike that defendant's answer, to dismiss that defendant's affirmative defenses and its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, and for an order of reference, and denied that defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against it as time-barred and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. The order dated October 6, 2020, insofar as appealed from, upon reargument, in effect, adhered to the prior determination in the order dated February 18, 2020, denying the cross-motion of the defendant Bais Hamedrash Ateres Chaim Hanipoly for summary judgment dismissing the complaint insofar as asserted against it as time-barred and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage and granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike that defendant's answer, to dismiss that defendant's affirmative defenses and its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, and for an order of reference.

ORDERED that the order dated February 18, 2020, is reversed insofar as appealed from, on the law, without costs or disbursements, so much of the order dated October 6, 2020, as, in effect, upon reargument, adhered to the prior determination in the order dated February 18, 2020, denying the cross-motion of the defendant Bais Hamedrash Ateres Chaim Hanipoly for summary judgment dismissing the complaint insofar as asserted against it as time-barred and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage and granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike that defendant's answer, to dismiss that defendant's affirmative defenses and its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, and for an order of reference is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith; and it is further,

ORDERED that the appeal from the order dated October 6, 2020, is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order dated February 18, 2020.

In August 2009, J.P. Morgan Mortgage Acquisition Corp. (hereinafter JP Morgan) commenced an action (hereinafter the 2009 action) against the defendant Bais Hamedrash Ateres Chaim Hanipoly (hereinafter the defendant), among others, to foreclose a mortgage on a condominium unit in Brooklyn.

By order dated October 17, 2013 (hereinafter the 2013 order), the Supreme Court granted dismissal of the complaint as abandoned pursuant to CPLR 3215(c). By order dated November 3, 2014 (hereinafter the 2014 order), the court denied JP Morgan's motion to vacate the 2013 order and to restore the action to the active calendar. The mortgage was ultimately assigned to the plaintiff in this action.

In March 2019, JP Morgan filed notices of appeal from the 2013 and 2014 orders. The appeals were later deemed dismissed for failure to perfect.

On May 6, 2019, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage. The defendant interposed an answer in which it asserted, inter alia, various affirmative defenses, including that the action was barred by the statute of limitations, as well as a counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. The plaintiff served a reply to the counterclaims.

In August 2019, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, to dismiss the defendant's affirmative defenses and counterclaims, and for an order of reference. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against it as time-barred and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.

In reply, the plaintiff argued that the action was timely pursuant to CPLR 205(a) because it was commenced within six months of the termination of the 2009 action, which occurred six months after the notices of appeal from the 2013 and 2014 orders were filed in March 2019.

In an order dated February 18, 2020, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied the defendant's cross-motion. Thereafter, the defendant moved, inter alia, for leave to reargue its cross-motion and those branches of the plaintiff's motion. The plaintiff opposed the motion. In an order dated October 6, 2020, the court, among other things, granted leave to reargue, and, upon reargument, in effect, adhered to the prior determination in the order dated February 18, 2020, denying the...