Everhome Mtge. v Aber

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Everhome Mtge. v Aber 2017 NY Slip Op 33530(U) June 6, 2017 Supreme Court, Kings County Docket Number: Index No. 507839/15 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. INDEX NO. 507839/2015 FILED: KINGS COUNTY CLERK 06/15/2017 02:33 PM NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 06/15/2017 At an IAS lAS Term, Term, Part Part FRP-1, FRP-l, of of the the Supreme Supreme Court Court of of ',the. the State State ofNewYork, of New York, held held in and and for the the County of of Kings, Kings, at the the Courthouse, Courthouse, at 360 360 Adams Adams County Street, Brooklyn, Brooklyn, New on the the 6thth day Street, New York, York, on day of of June June 2017 .' 2017 . . PRESENT: PRESENT: HON. NOACH NOACH DEAR, DEAR, J.S.C. J.S.C. Index No.: 507839/15 Index No.: 507839/15 x ------------------~-----------------~--x EVERHOME EVERHOME MORTGAGE, MORTGAGE, DECISION AND AND ORDER ORDER DECISION Plaintiff, Plaintiff, -against-against- NUCHEM ABER NUCHEM ABER et al, aI, Defendant, Defendant, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ xx --------------------Recitation, as required required by CPLR CPLR §2219 S2219 (a), of of the the papers papers considered considered in the the review review of of this this Recitation, Motion: Motion: Numbered Numbered Papers . Papers _1 _1_ Moving Moving Papers Papers and and Affidavits Affidavits Annexed Annexed _ 2_ _2_ Opposition/Cross Opposition/Cross _3_ _3_ Reply/Opp Reply/Opp to Cross Cross _4_ _4_ Cross-Reply Cross-Reply Upon papers, the Decision/Order Upon the the foregoing foregoing cited cited papers, Decision/Order on this this Motion Motion is as foijows:foijows:Defendant Equity Equity moves moves for dis~issal dis~issal of of Plaintiff's Plaintiffs claim claim and and sum~ary sumIY1'"ary judgment favor Defendant judgment in its favor on its counterclaim counterclaim for cancellation cancellation and and discharge discharge of of the mortgage mortgage in suit. Plaintiff Plaintiff opposes opposes and and cross'-moves judgment in its favor cross'"moves for summary summary judgment favor on on both both parties' parties' claims. claims. It is undisputed undisputed that that a prior prior action action was was filed on 4/30/09 4/30/09 and and that that the the instant instant action action was was filed filed on 6/24/15, 6/24/15, slightly slightly more more than than six years years later. "The "The law law is well well settled settled that that with with respect respect to a mortgage mortgage payable payable in installments, installments, there there 'separate causes causes of of action action for each each installment installment accrued, accrued, and and the the Statute Statute of of Limitations Limitations [begins] [begins] to are 'separate run, on the date each each installment installment [becomes] [becomes] due' unless unless the mortgage mortgage debt debt is accelerated. accelerated. Once Once the the mortgage mortgage debt debt is accelerated, accelerated, the entire entire amount amount is due due and and the the Statute Statute of of Limitations Limitations begins begins to run run on [* 1] 1 of 2 .j .i FILED: KINGS COUNTY CLERK 06/15/2017 02:33 PM NYSCEF DOC. NO. 111 ---- INDEX NO. 507839/2015 - RECEIVED NYSCEF: 06/15/2017 entire mortgage mortgage debt" debt" (Loiacono (Loiacono v. v. Goldberg, Goldberg, 240 240 A.D.2d A.D.2d 476,477 476,477 [2d Dept. Dept. 1997]). 1997]). As As this tbis the entire burden of initial burden its initial met its Defendant met 2009, Defendant action was not not commenced commenced with with six years years of of April of April 30, 2009, action burden then demonstrating, prima facie, that that this this action action was was untimely and the the burden then shifted shifted to Plaintiff Plaintiff to untimely and prima facie, demonstra6ng, Martin, 144 v. Martin, Ass'n v. Bank Nat. Ass'n timely (see, U.fi. raise an issue issue offaot of fact as to tb whether whether this action action is timely Us. Bank ·- raise AD3d 891 [2d Dept Dept 2016]). 2016]). AD3d this thus, this limitations 90-days Plaintiff argues argues that that 1) RPAPL_ RP APL, 1304 tolls tolls the statute statute of of limitations 90-days (and; (and, thus, Plaintiff ' action is timely), timely), 2) Defendant Defendant relies relies solely solely on an attorney attorney affidavit affidavit in support support of of its motion; motion, and and 3) action that Defendant Defendant failed failed to establish establish that that the prior prior action action was was an acceleration. acceleration. · that The Court Court rejects Plaintiffs contentions: contentions: 1) The The statute statute of of limitations limitations was was not not tolled. tolled. The The rejects Plaintiffs The commencement of of the the instant instant action action was was not not "stayed "stayed by a court court or by statutory statutory prohibition." prohibition." Plaintiff Plaintiff c~mmencement could have have sent sent a 90-day 90-day notice notice and and still still timely timely filed the action. action. It failed failed to do so. 2) Defendant Defendant could makes an argument argument based based on law law and (undisputed) (undisputed) public public records._ records. Counsel Counsel does does not not offer offer factual factual makes burden of testimony that that should should have have come come from from his client. client. 3) The The burden of creating creating an issue issue of of fact fact as to the the testimony plaintiff.in-the- prior-action's prior-action's standing standing and/or and/or ability ability to send send notices notices is upon upon Plaintiff Plaintiff and-Defendant and Defendant plaintiff-in-the- Ass'n v. Bank Nat. Ass'n has no obligation obligation to prove the viability viability of ofthe action (see, (see, for example, example, U.S. Us. Bank v. prior action the prior prove the Martin, AD3d 891 [2d Dept Dept 2016]). 2016]). Plaintiffhas Plaintiff has failed failed to demonstrate demonstrate the existence existence of of an issue issue Martin, 144 AD3d of fact. of lis pendens Defendant's motion motion is granted. granted. This This action action is dismissed, dismissed, lis pendens filed filed in this this action action · Defendant's unenforceable and herein_ deemed note asserted cancelled and discharged discharged, , and and the asserted herein deemed unenforceable and the the mortgage and note the mortgage cancelled ' . lien discharged. discharged. Plaintiffs Plaintiff s cross-motion cross-motion is denied denied as moot. moot. lien ENTER: ENTER: Hon.NO~ [* 2] 2 of 2 .I I i.

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