| LPP Mtge. Ltd. v Gold |
| 2007 NY Slip Op 07666 [44 AD3d 718] |
| October 9, 2007 |
| Appellate Division, Second Department |
| LPP Mortgage Ltd., Formerly Known as Loan Participant Partners,Ltd., Appellant-Respondent, v Andrew Gold et al., Respondents-Appellants, et al.,Defendants. |
—[*1] James E. Neuman, New York, N.Y., for respondents-appellants.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from (1) somuch of an order of the Supreme Court, Westchester County (Donovan, J.), entered February 2,2006, as denied its cross motion for summary judgment, and (2) so much of an order of the samecourt entered May 12, 2006, as denied its motion for leave to reargue, and the defendantsAndrew Gold, Anne Jowett Gold, and Discoveread, Inc., cross-appeal, as limited by their brief,from so much of the order entered February 2, 2006, as denied that branch of their motion whichwas for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the appeal from the order entered May 12, 2006, is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the order entered February 2, 2006, is affirmed insofar as appealed from; and itis further,
Ordered that the order entered February 2, 2006, is reversed insofar as cross-appealed from,on the law, that branch of the motion of the defendants Andrew Gold, Anne Jowett Gold, andDiscoveread, Inc., which was for summary judgment dismissing the complaint insofar as [*2]asserted against them is granted; and it is further,
Ordered that one bill of costs is awarded to the defendants Andrew Gold, Anne Jowett Gold,and Discoveread, Inc.
The Supreme Court improperly denied that branch of the motion of defendants AndrewGold, Anne Jowett Gold, and Discoveread, Inc. (hereinafter the defendants), which was forsummary judgment dismissing the complaint insofar as asserted against them. They establishedtheir prima facie entitlement to judgment as a matter of law by demonstrating that the plaintifffailed to commence this action within the applicable six-year limitations period (seeCPLR 213; EMC Mtge. Corp. v Patella, 279 AD2d 604, 605 [2001]). In opposition, theplaintiff failed to raise a triable issue of fact. In particular, the plaintiff did not submit evidencesufficient to raise an issue of fact as to whether it was an assignee or agent of a federal agencyentitled to immunity from the state statute of limitations (cf. RCR Servs. v Herbil HoldingCo., 229 AD2d 379, 380 [1996]), or whether the limitations period was tolled by thedefendants' acts after the mortgage debt was accelerated (see Lew Morris Demolition Co. vBoard of Educ. of City of N.Y., 40 NY2d 516, 520-521 [1976]).
In light of our determination, the remaining contentions are academic.
Motion by the respondents-appellants on an appeal and cross appeal from an order ofthe Supreme Court, Westchester County, entered February 2, 2006, and an appeal from an orderof the same court entered May 12, 2006, inter alia, to dismiss the appeal from the order enteredMay 12, 2006, on the ground that no appeal lies from an order denying a motion for leave toreargue. By decision and order on motion of this Court dated September 29, 2006, that branch ofthe motion which was to dismiss the appeal from the order entered May 12, 2006, was held inabeyance and referred to the Justices hearing the appeals and cross appeal for determination uponthe argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeals and cross appeal, it is[*3]
Ordered that the branch of the motion which was todismiss the appeal from the order entered May 12, 2006, is denied as academic in light of ourdetermination on the appeals and cross appeal. Crane, J.P., Florio, Lifson and Carni, JJ., concur.