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

212 A.D.3d 680

182 N.Y.S.3d 707

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

v.Helen B. DALLAS, etc., respondent, et al., defendants.

2020–02638

Index No. 54355/17

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

Argued—October 14, 2022

January 11, 2023

McCalla Raymer Leibert Pierce, LLC, New York, NY (Brian P. Scibetta and Harold Kofman of counsel), for appellant.

Legal Services of the Hudson Valley, Peekskill, NY (Jared L. Gilman of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Sam D. Walker, J.), dated January 8, 2020. The order and judgment, upon an order of the same court (Kathie E. Davidson, J.) dated July 19, 2019, inter alia, granting the motion of the defendant Helen B. Dallas to confirm a referee's report, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred, and for summary judgment on her counterclaims to cancel and discharge of record the subject mortgage and for an award of attorneys’ fees, in effect, granted that defendant's application for an award of attorneys’ fees in the sum of $90,290 to the extent of awarding her attorneys’ fees in the sum of $30,000, dismissed the complaint insofar as asserted against her, and cancelled and discharged of record all notices of pendency and the subject mortgage.

ORDERED that the order and judgment is affirmed, with costs.

On August 4, 2006, the defendant Helen B. Dallas executed a note in the sum of $457,500, which was secured by a mortgage on real property located in White Plains. In May 2008, the plaintiff's predecessor in interest commenced an action to foreclose the mortgage against Dallas, among others, alleging that Dallas defaulted on the note and mortgage by failing to make the payment due on January 1, 2007, and all payments thereafter (hereinafter the 2008 foreclosure action).

In the complaint, the plaintiff's predecessor in interest elected to declare "immediately due and payable the entire unpaid balance of principal." In an order dated July 11, 2012, the Supreme Court directed dismissal of the complaint in the 2008 foreclosure action as abandoned pursuant to CPLR 3215(c).

On March 31, 2017, the plaintiff commenced this action, inter alia, to foreclose the mortgage against Dallas, among others. Dallas interposed an answer, asserting, among other things, an affirmative defense that the action was time-barred and counterclaims pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage and for an award of attorneys’ fees pursuant to Real Property Law § 282.

Dallas moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her on the ground that the action was time-barred. The Supreme Court determined that Dallas made a prima facie showing that the statute of limitations had run, based upon the election in the 2008 foreclosure action to accelerate the mortgage debt, but that the plaintiff had raised a question of fact as to whether it revoked that prior election to accelerate. The court referred the issue of "whether plaintiff sent [Dallas] a de-acceleration letter or letters dated April 29, 2014," to a hearing before a referee. After the hearing, the referee issued a report finding that the plaintiff failed to demonstrate that it sent such a letter to Dallas in the manner required by the mortgage for any notices.

Dallas then moved to confirm the referee's report, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred, and for summary judgment on her counterclaims to cancel and discharge of record the mortgage and for an award of attorneys’ fees. In an order dated July 19, 2019, the Supreme Court, inter alia, granted Dallas's motion. Dallas then made an application for an award of attorneys’ fees in the sum of $90,290. In an order and judgment dated January 8, 2020, the court in, effect, granted the application to the extent of awarding Dallas attorneys’ fees in the sum of $30,000, dismissed the complaint insofar as asserted against her, and cancelled and discharged of record all notices of pendency and the subject mortgage. The plaintiff appeals.

Contrary to the plaintiff's contention, the Supreme Court did not err in confirming the referee's report. "The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility" ( Flagstar Bank, F.S.B. v. Konig, 153 A.D.3d 790, 790–791, 60 N.Y.S.3d 360 ; see CV XXVIII, LLC v. Trippiedi, 187 A.D.3d 847, 849, 134 N.Y.S.3d 49 ; U.S. Bank N.A. v. Sheth, 177 A.D.3d 1018, 1020, 113 N.Y.S.3d 166 ). Here, the referee's report was substantially supported by the record, as the plaintiff failed to demonstrate that it revoked the prior election to accelerate the mortgage debt.

An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4] ; ...