In an action to foreclose a mortgage, (1) the plaintiff moves for summary judgment against the appearing defendants, a default judgment against the non-appearing defendants, an order of reference, and to amend the caption (motion sequence No.1); and (2) the defendant moves for summary judgment dismissing the complaint (motion sequence #2): Papers Considered 1. Notice of Motion (amended)/Affirmation of Jordan Slavens, Esq./Affidavit of Roberto Montoya/Exhibits A-I; 2. Notice of Cross Motion/Affirmation of Joseph A. Altman, Esq./Affidavit of Amid Baksh/Exhibits A-G; 3. Affirmation of Jordan Slavens, Esq. in Opposition/Exhibit A; 4. Reply Affirmation of Joseph A. Altman, Esq./Reply Affidavit of Amid Baksh/Exhibits A-C. DECISION & ORDER Factual and Procedural Background The defendant Amid Baksh obtained a loan in the amount of $403,221.55 from plaintiff’s predecessor in interest on November 28, 2006. As security for the note, defendant executed a mortgage of the same date on the property located at 48 Prince Street, New Rochelle, New York. Plaintiff commenced this foreclosure action with the filing of a summons and complaint on December 20, 2018. Plaintiff asserts that the defendant failed to make the monthly installment payment due on February 1, 2013, and each payment thereafter. Defendant Baksh joined issue with the service of an answer raising the affirmative defense of, inter alia, the statute of limitations. Plaintiff now moves for summary judgment against Baksh, a default judgment against the non-appearing defendants, an order of reference and to amend the caption. Baksh cross-moves for summary judgment dismissing the complaint on the grounds that, inter alia, this action is barred by the statute of limitations. Defendant points out that a prior action was commenced by Bank of America, N.A., plaintiff’s predecessor in interest, on the same loan which was dismissed for the mortgagee’s failure to prosecute. Plaintiff herein fails to address the prior action in any of its motion papers. Discussion An action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding the commencement of the action (see CPLR 213 [4]). With respect to a mortgage payable in installments, there are separate causes of action for each installment accrued, and the statute of limitations begins to run on the date each installment becomes due (see Wells Fargo Bank, N.A. v. Cohen, 80 AD3d 753, 754 [2d Dept 2011]; Loiacono v. Goldberg, 240 AD2d 476, 477 [2d Dept 1997]). However, “even 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” (Wells Fargo Bank, N.A. v. Burke, 94 AD3d 980 [2d Dept 2012] quoting EMC Mtge. Corp. v. Patella, 279 AD2d 604, 605 [2d Dept 2001]). A lender, however, “may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action” (NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d 1068, 1069-1070 [2d Dept 2017]; Deutsche Bank Natl. Trust Co. v. Adrian, 157 AD3d 934, 935 [2d Dept 2018]). Here, Bank of America, N.A., commenced a prior action on July 23, 2012 to foreclose on the mortgage in question. In an order dated October 7, 2016, upon Bank of America’s motion for an order of reference, this Court held that an issue of fact existed as to whether service was proper, and the matter was set down for a traverse hearing. At the scheduled traverse hearing on December 13, 2016, Bank of America failed to appear, and thereafter, moved to vacate its default. After a hearing on the motion to vacate its default, this Court found that Bank of America demonstrated a reasonable excuse for its failure to appear at the traverse hearing and a meritorious cause of action and held that plaintiff shall pay defendant’s attorneys’ fees associated with the failure to appear at the previously scheduled hearing. The matter was once again set down for a traverse hearing. The case appeared on the calendar in the trial ready part on December 5, 2017, for a traverse hearing. In an order of the same date (Colabella, J.), the prior action was dismissed for Bank of America’s failure to proceed. Thereafter, the mortgage went through a series of assignments and was ultimately assigned to plaintiff on or about November 3, 2016, and plaintiff commenced this action on December 20, 2018. Based upon the record, the filing of the summons and complaint in the prior action on July 23, 2012, accelerated the note and mortgage and the statute of limitations began to run upon acceleration of the mortgage debt (see EMC Mtge. Corp. v. Patella, 279 AD2d 604 [2d Dept 2001]), and expired prior to the commencement of this action on December 20, 2018 (see Clayton Nat’l, Inc. v. Guldi, 307 AD2d 982 [2d Dept 2003]). Plaintiff’s argument in opposition is unclear. It appears that the plaintiff is arguing that the debt was not accelerated by the prior action. However, this argument is expressly belied by the complaint served in the first foreclosure action, which states that the defendant defaulted on the payment due April 1, 2010, and “that by reason of such defaults, the plaintiff, BANK OF AMERICA, N.A., does hereby elect to declare the balance of the principal indebtedness immediately due and payable”. The plaintiff has failed to submit any evidence demonstrating that it affirmatively revoked the election to accelerate the mortgage within the six-year time period before commencement of this action. Accordingly, it is ORDERED that the plaintiff’s motion for summary judgment against the appearing defendants, a default judgment against the non-appearing defendants, an order of reference, and to amend the caption is DENIED (motion sequence #1); and it is further ORDERED that the defendant Amid Baksh’s motion for summary judgment dismissing the complaint as barred by the statute of limitations is GRANTED and the complaint is dismissed (motion sequence #2). Dated: December 2, 2019 White Plains, New York
