| Bank of N.Y. Mellon v Celestin |
| 2018 NY Slip Op 05815 [164 AD3d 733] |
| August 22, 2018 |
| Appellate Division, Second Department |
[*1]
| Bank of New York Mellon, Respondent, v MonaCelestin et al., Defendants, and Alberte Laguerre, Appellant. |
Schulman & Kissel, P.C., Suffern, NY (Julian Alan Schulman of counsel), forappellant.
Leopold & Associates, PLLC, Armonk, NY (Henry P. DiStefano and Erin Wietecha ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Alberte Laguerre appeals from an order ofthe Supreme Court, Rockland County (William A. Kelly, J.), dated November 17, 2015. Theorder denied the motion of the defendant Alberte Laguerre pursuant to CPLR 3211 (a) (5) todismiss the complaint insofar as asserted against her.
Ordered that the order is affirmed, with costs.
In 2006, the defendant Mona Celestin executed a note in favor of American Brokers Conduit(hereinafter ABC) and, as security, gave a mortgage to Mortgage Electronic RegistrationSystems, Inc., as nominee for ABC, encumbering certain real property. Both the note and themortgage provided that the lender could require immediate payment in full in the event of theborrower's default, which included the failure to make the monthly installment payments,provided the lender sent a 30-day notice of default. In 2007, Celestin conveyed the property tothe defendant Alberte Laguerre (hereinafter the appellant). In 2008, Celestin entered into awritten stipulation with the plaintiff (hereinafter the stipulation), wherein she acknowledged thatthe note and mortgage were in default and agreed to make certain payments on dates and inamounts set forth in the stipulation, which was designed to bring the payments due under the noteand mortgage current. In the stipulation, the plaintiff agreed to take no affirmative steps tocommence a foreclosure action provided that Celestin complied with all of the terms of thestipulation. Thereafter, sporadic payments were made pursuant to the stipulation. The last, apartial payment, was made on January 24, 2009. In 2010, the plaintiff commenced an action toforeclose the mortgage (hereinafter the 2010 action). That action was thereafter "administrativelydismissed" by the Supreme Court.
In July 2015, the plaintiff commenced this foreclosure action against, among others, Celestinand the appellant, alleging a failure to make the monthly payment due under the note. Theappellant moved to dismiss the complaint insofar as asserted against her as time-barred. Theappellant asserted that she had been the beneficial owner of the property since 1982 and that itwas she, not Celestin, who made the actual payments. The appellant contended that, pursuant tothe [*2]terms of the stipulation, the statute of limitations began torun in January 2009. The Supreme Court denied the motion, finding that the action was nottime-barred.
In resolving a motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the groundthat the action is barred by the statute of limitations, the court must accept the facts as alleged inthe complaint as true, and accord the plaintiff the benefit of every possible favorable inference(see U.S. Bank N.A. v Gordon, 158AD3d 832, 834 [2018]; Amrusi vNwaukoni, 155 AD3d 814, 816 [2017]). In such a motion, the defendant bears the initialburden of demonstrating, prima facie, that the time within which to commence the action hasexpired (see U.S. Bank N.A. v Gordon, 158 AD3d at 834-835; Amrusi vNwaukoni, 155 AD3d at 816). "If the defendant satisfies this burden, the burden shifts to theplaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwiseinapplicable, or whether the plaintiff actually commenced the action within the applicablelimitations period" (U.S. Bank N.A. v Gordon, 158 AD3d at 835 [internal quotationmarks omitted]; see Amrusi v Nwaukoni, 155 AD3d at 816; Elia v Perla, 150 AD3d 962, 964[2017]).
Here, the appellant failed to sustain her initial burden of demonstrating, prima facie, that theaction was untimely. An action upon a bond or note, the payment of which is secured by amortgage upon real property, or upon a bond or note and mortgage so secured, or upon amortgage of real property, or any interest therein, must be commenced within six years (seeCPLR 213 [4]; U.S. Bank N.A. v Gordon, 158 AD3d at 834; Deutsche Bank Natl. Trust Co. vGambino, 153 AD3d 1232, 1234 [2017]). In a mortgage foreclosure action, the statuteof limitations begins to run "from the due date for each unpaid installment or the time themortgagee is entitled to demand full payment, or [from] when the mortgage debt has beenaccelerated" (Zinker v Makler, 298 AD2d 516, 517 [2002]). Once a mortgage debt isaccelerated, the borrower's right and obligation to make monthly installments ceases and all sumsbecome immediately due and payable (see Federal Natl. Mtge. Assn. v Mebane, 208AD2d 892, 894 [1994]).
The appellant's contention that, upon her default in the payments pursuant to the stipulation,the note and mortgage were accelerated, is contrary to the plain language of the stipulation.Further, contrary to the appellant's contention, CPLR 206 is inapplicable in this case (seeCPLR 206 [a]; UCC 3-104 [2] [d]).
Moreover, the stipulation provided that acceptance of sums paid by the debtor under thestipulation did not constitute a waiver of the plaintiff's right to foreclose its mortgage "or in anyother way prosecute or defend its rights," in the event of default under the stipulation (see Deutsche Bank Natl. Trust Co. vHaller, 100 AD3d 680, 681 [2012] [forbearance agreement provided that terms ofmortgage remained in full force and effect]; see also JPMorgan Chase Bank, N.A. v Galt Group, Inc., 84 AD3d1028, 1029 [2011]; Deutsche BankNatl. Trust Co. v Williams, 62 AD3d 826, 826 [2009]; Federal Home Loan Mtge.Corp. v Nappy, 254 AD2d 323 [1998]). Although the mortgage provided that the plaintiffcould, upon notice, demand immediate payment in full, there is no indication in the record thatthe plaintiff opted to accelerate and demand payment in full prior to the commencement of the2010 action (see Loiacono v Goldberg, 240 AD2d 476, 477 [1997]; 1-4 Bergman on NewYork Mortgage Foreclosures § 4.03). Since this action was commenced within sixyears of the 2010 action, we agree with the Supreme Court's determination to deny the appellant'smotion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against her(see Nationstar Mtge., LLC vWeisblum, 143 AD3d 866, 867-868 [2016]). Scheinkman, P.J., Cohen, Duffy andConnolly, JJ., concur.