US Bank N.A. v Levy

US Bank N.A. v Levy 2020 NY Slip Op 03044 Decided on May 27, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 27, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
JOHN M. LEVENTHAL
COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON, JJ.
2018-08894
(Index No. 612762/17)

[*1]US Bank National Association, etc., respondent,

v

Bina Levy, et al., appellants, et al., defendants.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carrone, LLP, Lake Success, NY (Christopher A. Gorman of counsel), for appellants.

Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Bina Levy and Isaac Levy appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered May 22, 2018. The order denied those defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.

ORDERED that the order is affirmed, with costs.

While the defendants Bina Levy and Isaac Levy (hereinafter together the defendants) sustained their initial burden of demonstrating, prima facie, that the time within which to commence the action had expired (see Deutsche Bank National Trust Co. v Gambino, 153 AD3d 1232, 1234; see also Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476), the plaintiff, in opposition, raised a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable (see Milone v US Bank N.A., 164 AD3d 145, 153-154).

Accordingly, we agree with the Supreme Court's denial of the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.

CHAMBERS, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court