Wilmington Sav. Fund Soc'y, FSB v. Rosenbaum

197 A.D.3d 1132

150 N.Y.S.3d 608 (Mem)

WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., appellant,

v.Jehuda ROSENBAUM, et al., respondents, et al., defendants.

2019–06636, 2019–14510

Index No. 515725/17

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

Argued—May 6, 2021

September 1, 2021

Knuckles, Komosinski & Manfro, LLP, Fishkill, N.Y. (Louis A. Levithan of counsel), for appellant.

Israel Vider, Brooklyn, NY, for respondents.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Noach Dear, J.), dated March 19, 2019, and (2) an order and judgment (one paper) of the same court dated December 9, 2019. The order, insofar as appealed from, granted those branches of the cross motion of the defendants Jehuda Rosenbaum and Ahuva Rosenbaum which were for summary judgment dismissing the complaint insofar as asserted against them and on their counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. The order and judgment, inter alia, canceled and discharged of record the subject mortgage.

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

ORDERED that the order and judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendants Jehuda Rosenbaum and Ahuva Rosenbaum.

The appeal from the order must be dismissed, because the right of direct appeal therefrom terminated with the entry of the order and judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 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 order and judgment (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

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 ; Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ). However, 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 (see Freedom Mtge. Corp. v. Engel, 37 N.Y.3d 1, 21, 146 N.Y.S.3d 542, 169 N.E.3d 912 ; Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 A.D.3d 985, 986, 41 N.Y.S.3d 738 ).

Here, in support of those branches of their cross motion which were for summary judgment dismissing the complaint insofar as asserted against them as time-barred and on their counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, the defendants Jehuda Rosenbaum and Ahuva Rosenbaum (hereinafter together the defendants) established that the six-year statute of limitations period began to run on the entire debt in December 2009, when the plaintiff's predecessor in interest commenced a prior action to foreclose the mortgage (see Federal Natl. Mtge. Assn. v. Schmitt, 172 A.D.3d 1324, 1325, 99 N.Y.S.3d 717 ; Bank of N.Y. Mellon v. Craig, 169 A.D.3d 627, 629, 93 N.Y.S.3d 425 ). Since the plaintiff did not commence this action...