U.S. Bank Nat'l Ass'n v. Armand

220 A.D.3d 963

199 N.Y.S.3d 137

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,

v.Nelcida ARMAND, appellant, et al., defendant.

2020–09744

Index No. 69087/15

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

Submitted—October 18, 2023

October 25, 2023

Marie A. Normil, Freeport, NY, for appellant.

McCalla Raymer Leibert Pierce, LLC, New York, NY (Daniel S. LoPresti of counsel), for respondent.

BETSY BARROS, J.P., ANGELA G. IANNACCI, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Nelcida Armand appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Westchester County (William J. Giacomo, J.), dated October 21, 2020. The order and judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court (Gerald E. Loehr, J.) dated January 25, 2019, inter alia, in effect, denying that defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, granting that branch of the plaintiff's motion which was pursuant to CPLR 306–b to extend the time to serve that defendant with the summons and complaint, and denying that branch of that defendant's cross-motion which was pursuant to CPLR 306–b to dismiss the complaint insofar as asserted against her, upon an order of the same court (Gerald E. Loehr, J.) dated August 8, 2019, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Nelcida Armand, to strike that defendant's answer, and for an order of reference, and denying that defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against her and for an award of attorneys’ fees pursuant to Real Property Law § 282, upon an order of the same court (Gerald E. Loehr, J.) also dated August 8, 2019, inter alia, granting the same relief to the plaintiff and referring the matter to a referee to compute the amount due to the plaintiff, and upon an order of the same court (William J. Giacomo, J.) dated October 21, 2020, inter alia, granting those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale and denying the cross-motion of the defendant Nelcida Armand, inter alia, to reject the referee's report, granted those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Nelcida Armand, to strike that defendant's answer, and for an order of reference are denied, that branch of that defendant's cross-motion which was for summary judgment dismissing the complaint insofar as asserted against her is granted, those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied as academic, and the orders dated August 8, 2019, and October 21, 2020, are modified accordingly.

On July 19, 2006, the defendant Nelcida Armand (hereinafter the defendant) executed a note in the sum of $328,000 in favor of Wilmington Finance, Inc. (hereinafter Wilmington). The note was secured by a mortgage on residential property located in Mount Vernon. By an assignment of mortgage dated May 29, 2008, Mortgage Electronic Registration Systems, Inc., as nominee for Wilmington, assigned the mortgage to the plaintiff.

On July 21, 2008, the plaintiff commenced an action (hereinafter the 2008 action) against the defendant, among others, to foreclose the mortgage. According to the parties, the plaintiff either abandoned or discontinued that action. On December 9, 2013, the plaintiff commenced a second action (hereinafter the 2013 action) to foreclose the mortgage. In an order dated June 24, 2015, the Supreme Court directed dismissal of the 2013 action pursuant to 22 NYCRR 202.27(b) and (c).

On November 5, 2015, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage. On December 10, 2015, the defendant served an answer in which she asserted various affirmative defenses, including lack of personal jurisdiction, failure to comply with RPAPL 1303 and 1304 and CPLR 3012–b, and expiration of the statute of limitations. On February 9, 2016, the defendant moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction based on improper service. In an order dated May 25, 2017, the Supreme Court directed a hearing to determine whether the defendant was properly served.

On August 1, 2018, the plaintiff moved, inter alia, pursuant to CPLR 306–b to extend the time to serve the defendant with the summons and complaint. The defendant cross-moved, among other things, pursuant to CPLR 306–b to dismiss the complaint insofar as asserted against her. The hearing to determine the validity of service of process was held on January 25, 2019, after which, in an order dated the same day, the Supreme Court, inter alia, determined that the defendant was not properly served, granted that branch of the plaintiff's motion which was pursuant to CPLR 306–b to extend the time to serve the defendant, in effect, denied the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her, and denied that branch of the defendant's cross-motion which was pursuant to CPLR 306–b to dismiss the complaint insofar as asserted against her. The plaintiff then served the defendant with process on February 13, 2019.

In April 2019, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against her on the ground, among other things, that the action was time-barred, and for an award of attorneys’ fees pursuant to Real Property Law § 282. In an order dated August 8, 2019, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied the defendant's cross-motion. In an separate order also dated August 8, 2019, the court, among other things, granted the same relief to the plaintiff and referred the matter to a referee to compute the amount due to the plaintiff.

Thereafter, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale, and the defendant cross-moved, among other things, to reject the referee's report. In an order dated October 21, 2020, the Supreme Court granted the plaintiff's motion and denied the defendant's cross-motion. On the same date, the court issued an order and judgment of foreclosure and sale, among other things, confirming the referee's report and directing the sale of the subject property. The defendant appeals.

An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4] ; Lubonty v. U.S. Bank N.A., 34 N.Y.3d 250, 261, 116 N.Y.S.3d 642, 139 N.E.3d 1222 ; U.S. Bank N.A. v. Dallas, 212 A.D.3d 680, 682, 182 N.Y.S.3d 707 ). "[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" ( BHMPW...