| Wells Fargo Bank, N.A. v Cohen |
| 2011 NY Slip Op 00506 [80 AD3d 753] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., Appellant, v Chana Cohen, Heirto the Estate of Edith Powell, Deceased, et al., Respondents, et al.,Defendants. |
—[*1] Martin Kurlander, Brooklyn, N.Y., for respondent Chana Cohen.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Schack, J.), dated June 19, 2009, which denied its motion for summaryjudgment on the complaint and granted the cross motion of the defendant Chana Cohen, in effect,to dismiss the complaint insofar as asserted against her on the ground that the action is barred bythe statute of limitations.
Ordered that the order is modified, on the law, by (1) deleting the provision thereof grantingthat branch of the cross motion of the defendant Chana Cohen which was, in effect, to dismissthe complaint insofar as asserted against her on the ground that the action is barred by the statuteof limitations to the extent that the complaint relates to unpaid mortgage installments whichaccrued on or after July 1, 2002, and substituting therefor a provision denying that branch of thecross motion, and (2) deleting the provision thereof denying that branch of the plaintiff's motionwhich was for summary judgment with respect to those causes of action which relate to unpaidmortgage installments which accrued on or after July 1, 2002, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed, without costsor disbursements.
In this mortgage foreclosure action, the default in payment occurred in June 2000 but theaction was not commenced until June 2008. The Supreme Court dismissed the complaint,concluding the action was time-barred because "[m]ore than six years elapsed since the lastmortgage payment was made and the mortgage balance was accelerated." However, the mortgageand note do not provide that the entire debt represented by the mortgage was to be automaticallyaccelerated upon the borrower's default in an installment payment, nor did the plaintiff everexercise its option under the note to accelerate the debt. Therefore, the statute of limitations forthe commencement of a foreclosure action did not expire six years after the June 2000 default(see CPLR 213 [4]).
"[W]ith respect to a mortgage payable in installments, there are 'separate causes of action foreach installment accrued, and the Statute of Limitations [begins] to run, on the date eachinstallment [becomes] due' " (Loiacono v Goldberg, 240 AD2d 476, 477 [1997], quotingPagano v Smith, 201 AD2d 632, 633 [1994]; see Lavin v Elmakiss, 302 AD2d638, 639 [2003]; Zinker v Makler, 298 AD2d 516 [2002]). Accordingly, even though thelast payment on the subject mortgage was June 2000, and this action was not commenced untilJune 2008, the entire action is not time-barred. Instead, as the plaintiff conceded before theSupreme Court, in the event that it prevailed in this action, its recovery would be limited [*2]to only those unpaid installments which accrued within the six-yearperiod of limitations preceding its June 2008 commencement of this foreclosure action, that is,the unpaid installments which accrued on or after July 1, 2002 (see EMC Mtge. Corp. v Suarez, 49AD3d 592, 593 [2008]; see generally Lavin v Elmakiss, 302 AD2d 638 [2003];Loiacono v Goldberg, 240 AD2d 476 [1997]).
The plaintiff is also entitled to summary judgment with respect to so much of its complaintwhich is not time-barred. A plaintiff in an action to foreclose a mortgage establishes its case as amatter of law through the production of the mortgage, the unpaid note, and evidence of default(see Grogg v South Rd. Assoc.,L.P., 74 AD3d 1021 [2010]; Campaign v Barba, 23 AD3d 327 [2005]; DiNardo v PatcamServ. Sta., 228 AD2d 543 [1996]). Once the plaintiff has made such a showing, it is thenincumbent upon the defendant to assert any defenses which could properly raise a triable issue offact regarding the default (see Grogg vSouth Rd. Assoc., L.P., 74 AD3d 1021 [2010]; Metropolitan Distrib. Servs. vDiLascio, 176 AD2d 312 [1991]).
Here the plaintiff produced the mortgage, the unpaid note, and evidence of default. Inopposition thereto, the respondent Chana Cohen only argued that the action was barred by thestatute of limitations, which, as explained above, is only a valid defense with respect to so muchof the plaintiff's causes of action which accrued prior to July 1, 2002. To the extent that Cohenhas raised other issues which she contends are sufficient to defeat summary judgment in favor ofthe plaintiff, these issues are improperly raised for the first time on appeal (see Bingham vNew York City Tr. Auth., 99 NY2d 355 [2003]; Fletcher v Westbury Toyota, Inc., 67 AD3d 730 [2009]).
Accordingly, the plaintiff's motion for summary judgment should have been granted to theextent set forth above. Skelos, J.P., Balkin, Leventhal and Sgroi, JJ., concur.