Aspen Props. Group, LLC v Santoro
Annotate this CaseDecided on January 19, 2023
Supreme Court, Suffolk County
Aspen Properties Group, LLC AS TRUSTEE OF AG3 REVOCABLE TRUST., Plaintiff,
against
Daniel F. Santoro; DENISE JACKSON; GOOD SAMARITAN HOSPITAL; TOWN SUPERVISIOR TOWN OF BROOKHAVEN; JOHN T MATHER MEMORIAL HOSPITAL; CAPITAL ONE BANK USA NA; CLERK OF THE SUFFOLK COUNTY DISTRICT COURT; CLERK OF THE SUFFOLK COUNTY TRAFFIC & PARKING VIOLATIONS AGENCY; SLOMINS INC.; OFFICE OF THE COUNTY CLERK OF SUFFOLK; "JOHN DOES" and "JANE DOES", said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien the premises, Defendants.
Index No. 613827/2020
THE MARGOLIN & WEINREB LAW GROUP, LLP
Attorneys for Plaintiff
165 Eileen Way, Suite 101
Syosset, New York 11791
Lieb At Law, P.C. Leslie Mendoza, Esq.
Counsel for Defendants Daniel F. Santoro and Denise Jackson
308 West Main Street, Ste 100
Smithtown, New York 11787 Robert F. Quinlan, J.
Upon the papers submitted (notice of motion with supporting papers, notice of cross motion with supporting papers, reply with supporting papers and reply in further support of the cross motion ) it is
ORDERED that the plaintiff's motion for summary judgment is denied, and it is further
ORDERED that the cross motion by defendants to dismiss as barred by the statute of limitation is granted and the action is dismissed.
On January 17, 2006, defendant, Daniel F. Santoro, executed and delivered a note to NetBank for $68,250.00, with monthly payments and a balloon payment due on February 1, 2021. To secure payment, the defendant and Denise Jackson, co-defendant, executed and delivered a mortgage on property located at s 325 Chapman Boulevard, Manorville, New York. The note was assigned to Citibank. During September 2010, Citibank commenced an action against the defendant, Daniel F. Santoro, based upon an alleged default on the note.
The plaintiff, who has been assigned the note and mortgage prior to the commencement of this action, instituted the present foreclosure action and the defendants answered raising ten affirmative defenses include the action being bar by the applicable statute of limitations. The plaintiff has moved, inter alia, for summary judgment and the defendants have cross moved for summary judgment based upon the six year statute of limitation. Specifically, the defendant claims that the prior action accelerated the loan in 2010.[FN1] The plaintiff replies that the defendants have not established that the prior action involved this loan. Alternatively, the defendants made payments after the prior action was commenced so that the loan was revived.
Initially, there is strong circumstantial evidence that the action commenced on September 13, 2010 involved this loan. The records of the payment schedule appear to approximately equal to the amount of the balance claimed due and the small discrepancy may be charges added.[FN2] Moreover, at the time, Citibank, N.A. was the holder of the note and mortgage, which was later assigned. The plaintiff has presented no evidence to rebut the defendants' statement that this loan [*2]was the one involved in the prior commencement.[FN3]
The plaintiff argues that there was partial payments made on September 24, 2010, October 5, 2010 and November 24, 2010. Therefore, such payments revived the statute of limitation. As the Court of Appeals noted "pursuant to General Obligations Law § 17—107(1) [partial payments after the commencement of the actions makes] the statute of limitations begin running anew on the date of the last such payment" (Federal National Mortgage Association v. Jeanty, 39 NY3d 951, 952 [2022]). Even under the plaintiff's position, the six year statute of limitation started running anew on November 24, 2010. Therefore, the six year statute of limitation had expired when this actions was commenced on September 28, 2020. Consequently, the plaintiff's motion for summary judgment is denied and the defendants' cross motion for summary judgment based upon the defense of statute of limitations is granted and the action is dismissed.
The foregoing constitutes the decision and order of the Court.
Dated: January 19, 2023_______________________________________
Hon. ROBERT F. QUINLAN, J..S.C. Footnotes
Footnote 1: The plaintiff raises the issue that the defendants have failed to provide a counter statement of material facts. It is noted that 22 NYCRR 202.8-g has been amended that a statement of material facts maybe required. This Part's Rules does include such requirement. However, as the issue of the statute of limitations has been raised, such requirement will be waived in this case. In any case, the defendants have submitted the counter statement of material facts in their reply.
Footnote 2: $63,607.58 verse $63,998.54 in the complaint. It is noted that the summons does have the Orig Acct# End, however, the plaintiff blackout that part of the payment history.
Footnote 3: This is in harmony with the new amendment, effective December 30, 2022 [Foreclosure Abuse Prevention Act] , to CPLR 213(4)(a): In any action on an instrument described under this subdivision, if the statute of limitation is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerate, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated. As the defendants have raised the statute of limitations based upon the loan being accelerated, the burden is on the plaintiff to establish that there was not an acceleration.
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