U.S. Bank, Nat'l Ass'n v. Degroat

186 A.D.3d 1454

128 N.Y.S.3d 866 (Mem)

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

v.Stephen F. DEGROAT, etc., et al., Defendants,Rocco Iodice, etc., Respondent.

2019–00444

Index No. 30798/17

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

Submitted—March 5, 2020

September 16, 2020

McCalla Raymer Leibert Pierce, LLC, New York, N.Y. (Richard P. Haber of counsel), for appellant.

The Lauterbach Law Firm, New City, N.Y. (Jennifer L. Fredeman of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated December 10, 2018. The order, insofar as appealed from, granted the cross motion of the defendant Rocco Iodice for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion of the defendant Rocco Iodice for summary judgment dismissing the complaint insofar as asserted against him is denied.

An action to foreclose a mortgage 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" ( EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 ). An acceleration of a mortgage debt can occur "when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due" ( Milone v. U.S. Bank N.A., 164 A.D.3d 145, 152, 83 N.Y.S.3d 524 ).

Here, the defendant Rocco Iodice (hereinafter the defendant) failed to sustain his initial burden of demonstrating, prima facie, that the action was untimely. In support of his cross motion, the defendant failed to submit a copy of the summons and complaint in the prior action. Under the circumstances, the Supreme Court was without a basis to determine whether the plaintiff, in commencing the prior action, accelerated the debt by electing to call due the entire amount secured by the mortgage (see Wells Fargo Bank, N.A. v. Lefkowitz, 171 A.D.3d 843, 844, 97 N.Y.S.3d 696 ).

Accordingly, the Supreme Court should have denied the defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against him regardless of...