Bank of NY Mellon v Dieudonne

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Bank of NY Mellon v Dieudonne 2017 NY Slip Op 32982(U) June 27, 2017 Supreme Court, Kings County Docket Number: 51877/16 Judge: Noach Dear Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 07/11/2017 01:00 PM NYSCEF DOC. NO. 45 INDEX NO. 518577/2016 RECEIVED NYSCEF: 07/11/2017 INDEX NO. 518577/2016 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 07/10/2017 At an JAS Term. Part FRP-l. of the Supreme Court of the State of"lev.- YorL held in and for the County of Kings, at the Courthouse. at 36fl ;\dams Street Brooklyn. New York. on tbc 27 1li day of June 2017. PRESENT: HON. NOACH DEAJZ, J.S.C. Index No.: 518577,116 x RANK OF NY MLLLON, Plaintiff DECISION AND ORDE!t -against- ALICE J DfEUDOl\NE et al, Defendant x Recitation. as required by CPUZ §2219 (a). of the papers considered in the rc\iew of this Motion: Papers Numbered Moving Papers and Affidavits Annexed Opposition Cross Upon the foregoing cited papers. the Decision/Order on this Motion is as folkrws: Defendant moves for dismissal, alleging that this action was filed beyond the statute of limitations. Plain ti IT opposes. "The hnv is vvcll scHled thm \vith respect to a mortgage payable in installments. !here are 'separate causes of action frH' each nstallment accrued, and the Statute of Limitutions !begins j to nm. on the date each installment [becomes J due unless the mortgage debt is accelerated. Once the mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire mortgage debt'' (Loiacono v. Go!dherJ!., 240 A.D.2d 4 76, 4 77 12d Dept. 1997 J ). A "Notice of Default and lntent to Aci.:elcrntc' dated 5/20/09 \\as (allegedly) sent by I ,itton Servicing. said notice provided that '"fi Ir you have not cured the default within forty-Jive (45) days of this notice. Litton will accelerate the maturity date of the l\ote and declare all outstanding amounts under the 1 of 2 2 of 4 [*FILED: 2] KINGS COUNTY CLERK 07/11/2017 01:00 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/11/2017 INDEX NO. 518577/2016 . NYSCEF DOC. NO. 44 " ' INDEX NO. 518577/2016 RECEIVED NYSCEF: 07/10/2017 Note immediately due and payable.·' This (arguably) accelerated the loan (see. for example, neuische Bank J\'a;. Tl'us! Co. F. Roya! JJ/11e Realr_v !foldings. Inc., 148 A.D.3d 529 [1'1 Dept 2017]). Even were that not an acceleration, Paragraph Fifth of the 20 IO complaint explicitly accelerates the debt staling. ''Plaintiff elects to call due the entire amount secured by the mortgage." Thus. the statute of limitations began to run no later Homeowner 5:ervice Corp. i-. 6/29,!10 at the time of filing or the 20 l 0 action (sec, Beneficial Tovar. 150 A.D.Jd 657 !2d Dept 2017]: fVard r Walkley. 143 AD.2d 415. 417 [2d DepU 988J. quoting Am. Jr. 2d, Mortgages § 387 ["a suit to foreclose a mortgage is notice of the rnost unequivocal character that the mortgagee \vi shes to avail himself of his option for acceleration'']) and the instant action was filed on l 0/20/ 16, more than six years later. Plaintiff ignores the 2009 letter and argues that the mortg<1ge pre\ ents the filing of suit from being an acceleration. That reading is clearly contrary to established precedents. Motion to dismiss granted. Case dismissed. Notice of pendcncy to be vacalecL 1 ., ( ,v 2 of 2 3 of 4

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