By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.Brianna Boland, etc., res-ap, v. North Bellmore Union Free School District, appellant-res — (Index No. 14505/13)Motion by the plaintiff for leave to reargue an appeal and cross appeal from a judgment of the Supreme Court, Nassau County (Karen V. Murphy, J.), dated February 26, 2016, which was determined by decision and order of this Court dated August 8, 2018.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is,ORDERED that the motion for leave to reargue is granted, and upon reargument, the decision and order of this Court dated August 8, 2018 (see Boland v. North Bellmore Union Free Sch. Dist., 164 AD3d 553), is recalled and vacated, and the following decision and order is substituted therefor:In an action to recover damages for personal injuries, the defendant appeals and the plaintiff cross-appeals from an order of the Supreme Court, Nassau County (Karen v. Murphy, J.), dated February 26, 2016. The order, insofar as appealed from, denied that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as alleged negligent maintenance of its premises. The order, insofar as cross-appealed from, granted that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as alleged negligent training and supervision.ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.On February 8, 2012, the infant plaintiff (hereinafter the plaintiff) allegedly was injured when she fell from an apparatus in the defendant’s school playground during recess. The plaintiff, by her mother as guardian, commenced this action against the defendant, alleging negligent training and supervision and negligent maintenance of the playground. After issue was joined, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as alleged negligent training and supervision and denied that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as alleged negligent maintenance of its premises. The defendant appeals and the plaintiff cross-appeals.Initially, we disagree with the Supreme Court’s decision to not consider the evidence submitted by the defendant in its reply papers. ”The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to introduce new arguments or new grounds for the requested relief” (Castro v. Durban, 161 AD3d 939, 941; see Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827). The evidence submitted by the defendant in its reply papers addressed arguments made by the plaintiff and the plaintiff’s expert in opposition to its motion. Thus, the court should have considered the evidence.The defendant established its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged negligent training and supervision by submitting evidence which demonstrated that the defendant provided adequate training of its staff and playground supervision, and that the level of training or supervision was not a proximate cause of the accident (see Cohen v. Half Hollow Hills Cent. Sch. Dist., 123 AD3d 1081, 1082; Davidson v. Sachem Cent. School Dist., 300 AD2d 276; Navarra v. Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 AD2d 211; Lopez v. Freeport Union Free School Dist., 288 AD2d 355). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court’s determination granting that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as alleged negligent training and supervision.The defendant also established its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged negligent maintenance of its premises by submitting evidence which demonstrated that it adequately maintained the playground, and that it did not create an unsafe or defective condition (see Davidson v. Sachem Cent. School Dist., 300 AD2d 276). In opposition, however, the plaintiff raised a triable issue of fact by the submission of her expert’s affidavit which opined, in part, that the ground cover beneath the apparatus from which the plaintiff fell was inherently dangerous as installed and/or maintained, because it did not meet standards established by the Consumer Product Safety Commission (see General Business Law §399-dd). Accordingly, we agree with the Supreme Court’s determination denying that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as alleged negligent maintenance of its premises.BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.
By Dillon, J.P.; Roman, Maltese and Christopher, JJ.Jennifer Halfon, res, v. U.S. Bank, National Association, etc. ap — (Index No. 505979/15)Arnold Joel Ludwig, Brooklyn, NY, for respondent.In an action to cancel and discharge of record a mortgage, the defendants appeal from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated March 15, 2016. The order granted the plaintiff’s motion for summary judgment on the complaint and directed the Kings County Clerk to cancel and discharge the subject mortgage.ORDERED that the order is reversed, on the law, with costs, and the plaintiff’s motion for summary judgment on the complaint is denied.In August 2006, the plaintiff obtained a loan from GFI Mortgage Bankers, Inc. (hereinafter GFI), which was secured by a mortgage on real property located in Brooklyn. In October 2008, nonparty Greenpoint Mortgage Funding, Inc. (hereinafter Greenpoint), commenced an action to foreclose the mortgage (hereinafter the 2008 foreclosure action). In November 2013, the Supreme Court denied Greenpoint’s motion for summary judgment on the complaint and for an order of reference and granted the plaintiff’s cross motion to dismiss the 2008 foreclosure action.In May 2015, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage. The plaintiff moved for summary judgment on the complaint and the defendants opposed the motion. In an order dated March 15, 2016, the Supreme Court granted the plaintiff’s motion for summary judgment on the complaint and directed the Kings County Clerk to cancel and discharge the mortgage. The defendants appeal.Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharge the mortgage was commenced (see Lubonty v. US Bank N.A., 159 AD3d 962). An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4]; Lubonty v. US Bank N.A., 159 AD3d at 962; NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d 1068, 1069). ”[E]ven 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” (Lubonty v. US Bank N.A., 159 AD3d at 963 [internal quotation marks omitted]; see Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 986).Here, the plaintiff met her prima facie burden of demonstrating her entitlement to judgment as a matter of law on the complaint by establishing that the 2008 foreclosure action accelerated the mortgage debt and that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see U.S. Bank N.A. v. Martin, 144 AD3d 891, 891; Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 AD3d at 98; JBR Constr. Corp. v. Staples, 71 AD3d 952, 953). Thus, the burden shifted to the defendants to raise a triable issue of fact.The defendants raised a triable issue of fact as to whether Greenpoint had standing to commence the 2008 foreclosure action and, therefore, whether the service of the 2008 complaint was effective to constitute a valid exercise of the option to accelerate the debt (see US Bank Trust, N.A. v. Williams, __ AD3d __, 2019 NY Slip Op 00634 [2d Dept 2019]; DLJ Mtge. Capital, Inc. v. Hirsh, 161 AD3d 944, 945; U.S. Bank N.A. v. Gordon, 158 AD3d 832, 836; Wells Fargo Bank, N.A. v. Burke, 94 AD3d 980, 983). The affidavits submitted by the defendants were sufficient to raise a triable issue of fact as to whether the note was physically delivered to the defendant U.S. Bank, National Association (hereinafter US Bank), on September 27, 2006, two years before US Bank’s assignor, Greenpoint, commenced the 2008 foreclosure action (see CPLR 4518[a]; Matter of Leon RR, 48 NY2d 117, 122; Bank of Am., N.A. v. Brannon, 156 AD3d 1, 8; PennyMac Corp. v. Chavez, 144 AD3d 1006, 1007; Wells Fargo Bank, N.A. v. Gallagher, 137 AD3d 898, 900; see also UCC 3-204[2]; JPMorgan Chase Bank, N.A. v. Weinberger, 142 AD3d 643, 645; Deutsche Bank Natl. Trust Co. v. Monica, 131 AD3d 737, 739; Deutsche Bank Trust Co. Ams. v. Vitellas, 131 AD3d 52, 55-56, 60-61).Accordingly, the Supreme Court should have denied the plaintiff’s motion for summary judgment on the complaint.In light of our determination, we need not address the defendants’ remaining contentions.DILLON, J.P., ROMAN, MALTESE and CHRISTOPHER, JJ., concur.
