| Torah v Dell Equity, LLC |
| 2011 NY Slip Op 09118 [90 AD3d 746] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Yeshiva Chasdei Torah et al., Appellants, v Dell Equity,LLC, et al., Respondents, et al., Defendants. |
—[*1] Hodgson Russ, LLP, New York, N.Y. (Roy I. Martin and Gary Heller of counsel), forrespondents.
In an action to foreclose a mortgage, the plaintiffs appeal from an order of the SupremeCourt, Kings County (Bayne, J.), dated May 11, 2010, which granted the motion of thedefendants Dell Equity, LLC, and 1600 Street Holding, LLC, to dismiss the complaint insofar asasserted against them pursuant to CPLR 3211 (a) (1), (5) and (7).
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsDell Equity, LLC, and 1600 Street Holding, LLC, to dismiss the complaint insofar as assertedagainst them is denied.
The Supreme Court erred in granting that branch of the motion of the defendants Dell Equity,LLC, and 1600 Street Holding, LLC (hereinafter together the defendants), which was to dismissthe complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7). The fact that theplaintiffs had alleged in the complaint that the action was pursuant to RPAPL article 15 was notan adequate basis for granting that branch of the defendants' motion, since that was a mereirregularity (see CPLR 2001), and the complaint otherwise states a cause of action toforeclose on a mortgage pursuant to RPAPL article 13.
"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute of limitationsgrounds, the moving defendant must establish, prima facie, that the time in which to commencethe action has expired. The burden then shifts to the plaintiff to raise an issue of fact as towhether the statute of limitations is tolled or is otherwise inapplicable" (Rakusin v Miano, 84 AD3d 1051,1052 [2011]; see Swift v New YorkMed. Coll., 25 AD3d 686, 687 [2006]). Here, although the Supreme Court properlyconcluded that this action was one to foreclose on a mortgage pursuant to RPAPL article 13,which has a six-year statute of limitations (see CPLR 213 [4]), and not, as alleged in thecomplaint, one pursuant to RPAPL article 15, it erred in granting that branch of the defendants'motion which was to dismiss the complaint insofar as asserted against them on the ground thatthe action was time-barred. The defendants failed to establish, prima facie, the accrual date of theforeclosure cause of action (seeRomanelli v Disilvio, 76 AD3d 553, 555 [2010]).
The Supreme Court also erred in granting that branch of the defendants' motion [*2]which was to dismiss the complaint insofar as asserted against thempursuant to CPLR 3211 (a) (1) based on the documentary evidence. In order to be considereddocumentary, the evidence "must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d78, 86 [2010]), that is, it must be "essentially unassailable" (Suchmacher v Manana Grocery, 73AD3d 1017, 1017 [2010]). Here, the satisfaction of mortgage was not "unambiguous and ofundisputed authenticity," as two different versions of it were produced, one indicating that themortgage principal was $40,000 and the other indicating that the mortgage principal was$400,000.
The defendants' remaining contention regarding the "presumption of payment" was raised forthe first time in their reply brief on appeal and, thus, is not properly before this Court (see Jackson v Tide Way Homes, Inc.,62 AD3d 754, 755 [2009]). Mastro, A.P.J., Chambers, Austin and Cohen, JJ., concur.