Wells Fargo Bank, N.A. v. Edwards

186 A.D.3d 1455

129 N.Y.S.3d 20 (Mem)

WELLS FARGO BANK, N.A., etc., Respondent,

v.Sylvia EDWARDS, Appellant, et al., Defendants.

2019–01262

2019–01264

Index No. 605722/15

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

Submitted - June 15, 2020

September 16, 2020

The Ranalli Law Group, PLLC, Hauppauge, NY (Ernest E. Ranalli of counsel), for appellant.

Greenberg Traurig, LLP, New York, NY (Marissa Banez of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Sylvia Edwards appeals from two orders of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), both dated November 5, 2018. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Sylvia Edwards, for summary judgment dismissing that defendant's first and fifth affirmative defenses and first and second counterclaims, and for an order of reference. The second order, insofar as appealed from, granted the same relief and appointed a referee.

ORDERED that the orders are reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Sylvia Edwards, for summary judgment dismissing that defendant's first and fifth affirmative defenses and first and second counterclaims, and for an order of reference, are denied.

On June 1, 2015, the plaintiff commenced the instant action to foreclose a mortgage encumbering residential property located in Suffolk County which was given on December 5, 2003, as security for a promissory note in the principal amount of $256,000. In her answer, the defendant Sylvia Edwards (hereinafter the defendant) asserted, in her first affirmative defense and first counterclaim, that the action was time-barred. In her fifth affirmative defense, the defendant alleged that the plaintiff had failed comply with the requirements set forth in Banking Law § 6–l. In her second counterclaim, the defendant sought attorney's fees incurred in defending this action. The defendant appeals from the granting of those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against her, for summary judgment dismissing her first and fifth affirmative defenses and her first and second counterclaims, and for an order of reference.

The defendant's first affirmative defense and first counterclaim asserted that the present action was untimely because a prior action commenced in 2005 had accelerated the debt and that more than six years had elapsed prior to the commencement of the present action. In moving for summary judgment, the plaintiff acknowledged that a prior action to foreclose this mortgage had been commenced on September 13, 2005. While the plaintiff argued that the defendant had failed to allege that the prior action had validly accelerated the debt, in order to obtain summary judgment dismissing the affirmative defense, the plaintiff, as the movant, had the initial burden of demonstrating its entitlement to judgment as a matter of law dismissing the defendant's first affirmative defense and first counterclaim alleging that this action is time-barred (see Bank of N.Y. v. Penalver, 162 A.D.3d 834, 835, 80 N.Y.S.3d 309 ; U.S. Bank N.A. v. Weinman, 123 A.D.3d 1108, 2 N.Y.S.3d 128 ). Since the plaintiff failed to offer any evidence that the 2005 action did not accelerate the debt, the plaintiff was not entitled to summary judgment dismissing the first affirmative defense and first counterclaim, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ....