| JBR Constr. Corp. v Staples |
| 2010 NY Slip Op 02514 [71 AD3d 952] |
| March 23, 2010 |
| Appellate Division, Second Department |
| JBR Construction Corp., Appellant, v William Staples,Respondent. |
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In an action for a judgment declaring that a certain mortgage of record is no longer valid anddirecting the County Clerk of Dutchess County to cancel the mortgage, the plaintiff appeals froman order of the Supreme Court, Dutchess County (Pagones, J.), dated April 30, 2009, whichdenied those branches of its motion which were for summary judgment declaring that the subjectmortgage is invalid, and directing the County Clerk of Dutchess County to cancel the mortgage.
Ordered that the order is reversed, on the law, with costs, those branches of the plaintiff'smotion which were for summary judgment declaring that the subject mortgage is invalid, anddirecting the County Clerk of Dutchess County to cancel the mortgage are granted, and thematter is remitted to the Supreme Court, Dutchess County, for the entry of a judgment declaringthat the subject mortgage is invalid and directing the County Clerk of Dutchess County to cancelthe mortgage.
RPAPL 1501 (4) provides that "[w]here the period allowed by the applicable statute oflimitation for the commencement of an action to foreclose a mortgage . . . hasexpired," any person with an estate or interest in the property may maintain an action "to securethe cancellation and discharge of record of such encumbrance, and to adjudge the estate orinterest of the plaintiff in such real property to be free therefrom" (RPAPL 1501 [4]). Here, theplaintiff property owner made a prima facie showing of its entitlement to judgment as a matter oflaw declaring that the subject mortgage is invalid by establishing that a foreclosure actioncommenced by the defendant mortgagee in 2001 was dismissed by this Court as abandonedpursuant to CPLR 3215 (c) (see Staplesv Jeff Hunt Devs., Inc., 56 AD3d 459 [2008]), and that the commencement of a newforeclosure action would be time-barred by the applicable six-year statute of limitations(see CPLR 213 [4]; LePore vShaheen, 32 AD3d 1330, 1331 [2006]; Corrado v Petrone, 139 AD2d 483[1988]; see also Plaia v Safonte, 45AD3d 747 [2007]; Zinker v Makler, 298 AD2d 516 [2002]). In opposition, thedefendant failed to raise a triable issue of fact as to whether the statute of limitations was tolledor revived (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Rack v Rushefsky, 5 AD3d 753[2004]). Accordingly, the Supreme Court should have granted those branches of the plaintiff'smotion which were for summary judgment declaring that the subject mortgage is invalid anddirecting the County Clerk of Dutchess County [*2]to cancel it(see LePore v Shaheen, 32 AD3d1330 [2006]; Corrado v Petrone, 139 AD2d 483 [1988]).
That branch of the plaintiff's motion which sought cancellation of the notice of pendencyfiled in connection with the dismissed foreclosure action was not addressed by the SupremeCourt. Accordingly, that branch of the plaintiff's motion remains pending and undecided, and theissues raised with respect thereto are not properly before us (see Lend-Mor Mtge. Bankers Corp. v Nicholas, 69 AD3d 680[2010]; Fremont Inv. & Loan vDelsol, 65 AD3d 1013, 1015 [2009]; Zellner v Tarnell, 65 AD3d 1335, 1337 [2009]; Katz vKatz, 68 AD2d 536, 542-543 [1979]).
Since this is a declaratory judgment action, the matter must be remitted to the SupremeCourt, Dutchess County, for the entry of a judgment declaring that the subject mortgage isinvalid (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371US 74 [1962], cert denied 371 US 901 [1962]). The judgment should further direct theCounty Clerk of Dutchess County to cancel the mortgage (see Corrado v Petrone, 139AD2d 483, 485 [1988]). Dillon, J.P., Miller, Eng and Roman, JJ., concur.