U.S. Bank Trust, N.A. v. Reizes

222 A.D.3d 907

202 N.Y.S.3d 407

US BANK TRUST, N.A., etc., respondent-appellant,

v.Mendel REIZES, appellant-respondent, et al., defendants.

2020–00819

Index No. 523467/17

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

Argued—June 13, 2023

December 20, 2023

Menashe & Associates, LLP, Montebello, NY (Chezki Menashe of counsel), for appellant-respondent.

Stern & Eisenberg, P.C., Depew, NY (Arsenio Rodriguez of counsel), for respondent-appellant.

FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Mendel Reizes appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (Noach Dear, J.), dated October 31, 2019. The order, insofar as appealed from, in effect, denied that branch of the motion of the defendant Mendel Reizes which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the statute of limitations and granted the plaintiff's cross-motion pursuant to CPLR 2201 to stay the action. The order, insofar as cross-appealed from, in effect, denied that branch of the motion of the defendant Mendel Reizes which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the statute of limitations.

ORDERED that the cross-appeal is dismissed; and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the motion of the defendant Mendel Reizes which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the statute of limitations is granted, and the plaintiff's cross-motion pursuant to CPLR 2201 to stay the action is denied; and it is further,

ORDERED that one bill of costs is awarded to the defendant Mendel Reizes.

The cross-appeal by the plaintiff from the order must be dismissed, as the plaintiff is not aggrieved thereby (see CPLR 5511 ). The issues raised on the cross-appeal have been considered as alternative grounds for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ; Matter of Boyajian v. Village of Ardsley, Zoning Bd. of Appeals, 210 A.D.3d 1079, 1080, 179 N.Y.S.3d 701 [2022] ).

On June 22, 2005, Mendel Reizes (hereinafter the defendant) and Yehoshua Yusewitz executed a note in the sum of $450,000 in favor of HSBC Mortgage Corporation (USA) (hereinafter HSBC Mortgage). The note was secured by a mortgage on certain residential property located in Brooklyn. On June 1, 2010, HSBC Mortgage commenced an action (hereinafter the 2010 action) against the defendant and Yusewitz, among others, to foreclose the mortgage. The 2010 action was purportedly dismissed in August 2014. Subsequently, the mortgage was allegedly assigned to the plaintiff.

On December 6, 2017, the plaintiff commenced this action against the defendant and Yusewitz, among others, to foreclose the mortgage. Thereafter, the defendant moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the statute of limitations.

The plaintiff cross-moved pursuant to CPLR 2201 to stay the action in light of two federal court actions brought by the defendant (hereinafter the federal court actions), in which the defendant alleged, among other things, that the plaintiff's former attorneys in the instant matter and an alleged loan servicer for the loan violated the Fair Debt Collection Practices Act ( 15 USC 1692 et seq. ) by knowingly attempting to collect on a time-barred debt. Although the plaintiff was not a party to either of the federal court actions, the plaintiff contended that a stay in this action was necessary in order to avoid the potential of conflicting decisions.

In an order dated October 31, 2019, the Supreme Court, inter alia, in effect, denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the statute of limitations and granted the plaintiff's cross-motion pursuant to CPLR 2201 to stay the action. The defendant appeals.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( Bayview Loan Servicing, LLC v. Paniagua, 207 A.D.3d 691, 691–692, 172 N.Y.S.3d 451 [2022] [internal quotation marks omitted]; see U.S. Bank N.A. v. Vitolo, 182 A.D.3d 627, 627–628, 120 N.Y.S.3d 791 [2020] ). "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" ( Bayview Loan Servicing, LLC v. Paniagua, 207 A.D.3d at 692, 172 N.Y.S.3d 451 [internal quotation marks omitted]; see U.S. Bank N.A. v. Vitolo, 182 A.D.3d at 628, 120 N.Y.S.3d 791 ).

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). With respect to a mortgage payable in installments, separate causes of action accrue for each installment that is not paid, and the statute of limitations begins to run on the date each installment becomes due (see Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 867, 39 N.Y.S.3d 491 [2016] ). However, "even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the [s]tatute of [l]imitations begins to run on the entire debt" ( EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 [2001] ).

Here, the defendant demonstrated that the statute of limitations began to run on June 1, 2010, when HSBC Mortgage accelerated the mortgage debt and commenced the 2010 action. Since the plaintiff did not commence the instant action until December 6, 2017, more than six years later, the defendant established, prima facie, that the instant action was untimely (see Wilmington Sav. Fund Socy., FSB v. Avenue Basin Mgt., Inc., 211 A.D.3d 1085, 1086, 181 N.Y.S.3d 318 [2022] ; U.S. Bank N.A. v. Nail, 203 A.D.3d 1095, 1097, 165 N.Y.S.3d 124 [2022] ).

In opposition, the plaintiff failed to raise a question of fact. Contrary to the plaintiff's contention, pursuant to CPLR 203, as amended by the Foreclosure Abuse Prevention Act (L 2022, ch 821 [eff Dec 30, 2022]; hereinafter FAPA), the unilateral de-acceleration letter allegedly sent to the defendant failed to revive or reset the statute of limitations (see 203[h]; Anglestone Real Estate Venture Partners Corp. v. Bank of New York Mellon, 221 A.D.3d 943, 201 N.Y.S.3d 159 [2d Dept. 2023] ; E. Fork Funding LLC v. U.S. Bank, N.A., 2023 U.S. Dist. LEXIS 56719, 2023 WL 2660645 [E.D.N.Y. 2023] ).

Further, the plaintiff's...