| Deutsche Bank Natl. Trust Co. v Gambino |
| 2017 NY Slip Op 06428 [153 AD3d 1232] |
| September 13, 2017 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee for MorganStanley ABS Capital I Inc. Trust 2004-NC4, Mortgage Pass-Through Certificates, Series2004-NC4, Respondent, v Joanne Gambino, Appellant, et al.,Defendants. |
Howard M. File, Esq., P.C., Staten Island, NY, for appellant.
Houser & Allison, APC, New York, NY (Danielle P. Light of counsel), forrespondent.
Appeal from an order of the Supreme Court, Richmond County (Philip G. Minardo, J.), datedMarch 17, 2016. The order denied the motion of the defendant Joanne Gambino to dismiss thecomplaint insofar as asserted against her as time-barred and to cancel and discharge amortgage.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendant Joanne Gambino which was to dismiss the complaintinsofar as asserted against her as time-barred, and substituting therefor a provision granting thatbranch of the motion; as so modified, the order is affirmed, with costs payable by theplaintiff.
In 2004, the defendant Joanne Gambino executed a mortgage on her property as security for anote. After Gambino defaulted on her payment obligations, the plaintiff accelerated the debt andcommenced an action, on January 7, 2009, to foreclose the mortgage (hereinafter the priorforeclosure action). In the prior foreclosure action, the plaintiff was denominated "Deutsche BankNational Trust Company As Trsutee [sic]." Issue was never joined in that action. In an orderdated May 3, 2012, the plaintiff was directed to move for an order of reference on or before May31, 2012, "or the matter will be dismissed for plaintiff's failure to prosecute." No further actionwas taken by the plaintiff in the prior foreclosure action.
On September 17, 2015, the plaintiff, denominated as "Deutsche Bank National TrustCompany, as trustee for Morgan Stanley ABS Capital I Inc. Trust 2004-NC4, mortgagepass-through certificates, series 2004-NC4," commenced this action against, among others,Gambino, to foreclose upon the same mortgage. The complaint recited that "a prior action wascommenced and plaintiff intends it to be discontinued." Gambino subsequently moved pursuantto CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against her as time-barred andpursuant to RPAPL 1501 (4) to cancel and discharge the mortgage, contending that more than sixyears had elapsed since the [*2]acceleration of the debt in theprior foreclosure action, and that the prior foreclosure action had been "administrativelydismissed" in 2012. In support of her motion, she submitted a copy of the Supreme Court'sdocket in the prior foreclosure action, which showed that on July 12, 2012, that action had beenmarked "other final disp. pre-note." The plaintiff opposed the motion, but acknowledged that"[t]he 2009 Foreclosure Action was subsequently dismissed for . . . failure toprosecute." The court denied the motion on the ground that the prior foreclosure action had neverbeen properly dismissed because a 90-day demand was never served upon the plaintiff pursuantto CPLR 3216. Gambino appeals.
As a threshold matter, the Supreme Court should not have denied Gambino's motion, whichwas dispositive in nature, on a ground that the parties did not litigate (see Misicki v Caradonna, 12 NY3d511, 519 [2009]; Federal Natl.Mtge. Assn. v Anderson, 119 AD3d 892, 893 [2014]; Rosenblatt v St. George Health &Racquetball Assoc., LLC, 119 AD3d 45, 54-55 [2014]). In opposition to Gambino'smotion, the plaintiff argued that it was not the same entity as the plaintiff in the prior foreclosureaction and that triable issues of fact existed as to whether the plaintiff in the prior foreclosureaction was authorized to commence that action and accelerate the mortgage debt, and whether thestatute of limitations was tolled for certain periods after the debt was purportedly accelerated in2009. The court erred in denying Gambino's motion on the ground that the prior foreclosureaction had never been properly dismissed, since the docket in that action indicated that it hadbeen finally disposed of in 2012, the plaintiff expressly recited in the complaint that it "intends[the prior foreclosure action] to be discontinued," and the plaintiff also affirmativelyacknowledged in opposition to Gambino's motion that the prior foreclosure action had beendismissed. These circumstances demonstrated that the prior foreclosure action had beenadministratively dismissed, and that the plaintiff did not challenge the propriety of that dismissalor seek to restore that action to the court's calendar. Moreover, there was no contention orevidence that the allegedly distinct entity "Deutsche Bank National Trust Company As Trsutee[sic]" had ever challenged the dismissal of the prior foreclosure action. Contrary to the plaintiff'scontention, Gambino was prejudiced by the court's sua sponte determination (see Evans v Argent Mtge. Co., LLC,120 AD3d 618, 621 [2014]; Rosenblatt v St. George Health & Racquetball Assoc.,LLC, 119 AD3d at 54).
In the interest of judicial economy, it is appropriate, under the circumstances of this case, toaddress Gambino's motion on the merits, rather than remitting the matter to the Supreme Court todo so (see Town of Brookhaven vMMCCAS Holdings, Inc., 137 AD3d 1258, 1258-1259 [2016]; Rosenblatt v St.George Health & Racquetball Assoc., LLC, 119 AD3d at 56). In support of her motion,Gambino demonstrated that the six-year statute of limitations (see CPLR 213 [4]) beganto run on January 7, 2009, when the plaintiff accelerated the mortgage debt and commenced theprior foreclosure action (see U.S. BankN.A. v Martin, 144 AD3d 891, 891-892 [2016]; PSP-NC, LLC v Raudkivi, 138 AD3d 709, 710-711 [2016]; EMC Mtge. Corp. v Smith, 18 AD3d602, 603 [2005]). Since the plaintiff did not commence the instant action until more than sixyears after January 7, 2009, Gambino sustained her initial burden of demonstrating, prima facie,that this action was untimely. In opposition, the plaintiff failed to raise a question of fact as towhether "Deutsche Bank National Trust Company As Trsutee [sic]" was a distinct entity whichdid not have the authority to accelerate the mortgage debt in January 2009 or was not the holderof the note when it commenced the prior foreclosure action. Furthermore, the plaintiff failed toraise a question of fact as to whether the limitations period was tolled by Gambino's purportedfiling of a bankruptcy petition in March 2012, or by purported bankruptcy filings by acodefendant in the prior foreclosure action (see U.S. Bank N.A. v Martin, 144 AD3d at892-893). Accordingly, the court erred in denying that branch of Gambino's motion which was todismiss the complaint insofar as asserted against her as time-barred.
However, that branch of Gambino's motion which was to cancel and discharge the mortgagepursuant to RPAPL 1501 (4) was properly denied, since that relief must be sought in an actionand not by motion (see RPAPL 1501 [4]; see e.g. Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d985 [2016]; Gettysburgh St.Holding Corp. v Bank of N.Y. Mellon, 137 AD3d 1076 [2016]). Mastro, J.P., Rivera,Sgroi and Maltese, JJ., concur. [Prior Case History: 51 Misc 3d 1201(A), 2016 NY Slip Op50334(U).]