| EMC Mtge. Corp. v Suarez |
| 2008 NY Slip Op 02102 [49 AD3d 592] |
| March 11, 2008 |
| Appellate Division, Second Department |
| EMC Mortgage Corporation, Respondent, v Maria CieloSuarez et al., Appellants, et al., Defendants. |
—[*1] Steven J. Baum, P.C., Buffalo, N.Y. (Darleen V. Karaszewski and Karen L. Samplin ofcounsel), for respondent.
In a mortgage foreclosure action, the defendants Maria Cielo Suarez and Bernardo A. Suarezappeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County(Dorsa, J.), dated December 21, 2006, as granted that branch of the plaintiff's motion which wasfor leave to amend the complaint and denied their cross motion for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the appellants' contention, the instant mortgage foreclosure action is nottime-barred (see CPLR 213 [4]). While another entity purported to accelerate theappellants' mortgage debt in a prior action commenced on April 8, 1997, the note was neverassigned to that entity and it therefore never had authority to accelerate the debt or to sue toforeclose. Accordingly, the purported acceleration was a nullity and the six-year statute oflimitations, which ordinarily would commence running on the date of acceleration (seeClayton Natl. v Guldi, 307 AD2d 982 [2003]; Lavin v Elmakiss, 302 AD2d 638[2003]; EMC Mtge. Corp. v Patella, 279 AD2d 604 [2001]), did not begin to run on theentire debt at that time. Therefore, the plaintiff's commencement of this mortgage foreclosureaction on October 12, 2005 was not time-barred. However, in the event that the plaintiff prevailsin this action, its recovery is limited to only those unpaid installments which accrued within thesix-year period immediately preceding its commencement of this action (see generally Lavinv [*2]Elmakiss, 302 AD2d 638 [2003]; Loiacono vGoldberg, 240 AD2d 476 [1997]), and the Supreme Court properly permitted the plaintiff toamend the complaint to reflect this limitation on recovery (see generally CPLR 3025 [b];Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]). The appellants have notbeen prejudiced by the amendment, since the date of the default has not been altered, and theplaintiff is still required to prove that the loan was properly placed in foreclosure in 1997 in orderto prevail.
The Supreme Court also properly denied that branch of the appellants' cross motion whichwas for summary judgment dismissing the complaint insofar as asserted against them, as theconflicting evidentiary submissions of the parties on the motion and cross motion raisedsubstantial questions of fact and credibility with regard to whether the appellants defaulted on theloan.
The appellants' remaining contentions are without merit. Mastro, J.P., Covello, Eng andBelen, JJ., concur.