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

170 A.D.3d 1237

97 N.Y.S.3d 133

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

v.Howard GREENBERG, etc., et al., appellants, et al., defendants.

2016–12327

2017–03846

Index No. 52595/16

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

Submitted—January 11, 2019

March 27, 2019

Reich, Reich & Reich, P.C., White Plains, N.Y. (Nicholas A. Pasalides of counsel), for appellants.

Sandelands Eyet LLP, New York, N.Y. (Margaret S. Stefandl of counsel), for respondent.

WILLIAM F. MASTRO, J.P., HECTOR D. LASALLE, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment of foreclosure and sale is affirmed; and it is further,

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

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

On June 23, 2005, the defendants Howard Greenberg and Stefanie Greenberg (hereinafter together the defendants) executed a note in the amount of $1,200,000 in favor of Countrywide Bank, which was secured by a mortgage on residential real property. In March 2009, the defendants allegedly defaulted under the terms of the loan. By letter dated March 19, 2009, Countrywide Home Loans Servicing, LP, the servicer of the loan, gave the defendants notice that they were in default and informed them that if they failed to cure their default by April 23, 2009, "the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time" (emphasis in original).

On or about May 10, 2010, the plaintiff, as successor-in-interest to the note, commenced an action against the defendants to foreclose the mortgage (hereinafter the 2010 action). On July 31, 2014, the 2010 action was dismissed.

Thereafter, on March 2, 2016, the plaintiff, as successor-in-interest to the note, commenced the instant action against the defendants to foreclose the mortgage. The defendants answered and asserted, as an affirmative defense, that the complaint was time-barred. The plaintiff moved, inter alia, for summary judgment on the complaint, and the defendants cross-moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred. The Supreme Court granted the plaintiff's motion and denied the defendants' cross motion. Subsequently, the court entered a judgment of foreclosure and sale. The defendants appeal, arguing that the court should have granted their cross motion.

"To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" ( U.S. Bank N.A. v. Gordon, 158 A.D.3d 832, 834–835, 72 N.Y.S.3d 156 [internal quotation marks omitted]; see Campone v. Panos, 142 A.D.3d 1126, 1127, 38 N.Y.S.3d 226 ; Stewart v. GDC Tower at Greystone, 138 A.D.3d 729, 30 N.Y.S.3d 638 ). "If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" ( U.S. Bank N.A. v. Gordon, 158 A.D.3d at 835, 72 N.Y.S.3d 156 [internal quotation marks omitted]; see Stewart v. GDC Tower at Greystone, 138 A.D.3d at 730, 30 N.Y.S.3d 638 ; Barry v. Cadman Towers, Inc., 136 A.D.3d 951, 952, 25 N.Y.S.3d 342 ). Actions to foreclose a mortgage are governed by a six-year statute of limitations (see CPLR 213[4] ; Milone v. U.S. Bank N.A., 164 A.D.3d 145, 151, 83 N.Y.S.3d 524 ; Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193, 197, 47 N.Y.S.3d 80 ; Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 A.D.3d 985, 986, 41 N.Y.S.3d 738 ; Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ). "The law is well settled that, even 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" ( Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 A.D.3d at 986, 41 N.Y.S.3d 738 [internal quotation marks omitted]; see Stewart Tit. Ins. Co. v. Bank of N.Y. Mellon, 154 A.D.3d 656, 659, 61 N.Y.S.3d 634 ).

Here, the defendants failed to meet their prima facie burden of establishing that the time within which to commence the instant action had expired. Contrary to the defendants' contention, the March 19,...