| Hudson City Sav. Bank, FSB v Schoenfeld |
| 2019 NY Slip Op 03324 [172 AD3d 692] |
| May 1, 2019 |
| Appellate Division, Second Department |
[*1]
| Hudson City Savings Bank, FSB,Respondent, v Michael Schoenfeld, Appellant, et al.,Defendants. |
William J. Florence, Jr., Peekskill, NY, for appellant.
Aldridge Pite, LLP, Melville, NY (Kenneth M. Sheehan of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Michael Schoenfeld appeals from anorder of the Supreme Court, Westchester County (William J. Giacomo, J.), dated November 29,2017. The order denied that defendant's motion pursuant to CPLR 3211 (a) (5) and (8) to dismissthe complaint insofar as asserted against him.
Ordered that the order is affirmed, with costs.
In August 2015, the plaintiff commenced this action to foreclose a mortgage given by thedefendant Michael Schoenfeld (hereinafter the defendant) upon the defendant's alleged default inmaking payments. The defendant moved pursuant to CPLR 3211 (a) (5) and (8) to dismiss thecomplaint insofar as asserted against him on the grounds that the six-year statute of limitationshad expired and that the court lacked personal jurisdiction over him, as service of process wasmade, in effect, in violation of General Business Law § 13. The plaintiff opposedthe motion. By order dated November 29, 2017, the Supreme Court denied the motion. Thedefendant appeals.
"[A]n action upon a bond or note, the payment of which is secured by a mortgage upon realproperty, or upon a bond or note and mortgage so secured, or upon a mortgage of real property,or any interest therein" must be commenced within six years (CPLR 213 [4]). With respect to amortgage payable in installments, there are separate causes of action for each installmentaccrued, and the statute of limitations begins to run on the date each installment becomes dueunless the mortgage debt is accelerated (see Pagano v Smith, 201 AD2d 632, 633 [1994];Khoury v Alger, 174 AD2d 918, 919 [1991]). "On a motion to dismiss a cause of actionpursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations, adefendant bears the initial burden of establishing, prima facie, that the time in which to sue hasexpired" (Wells Fargo Bank, N.A. vBurke, 155 AD3d 668, 669 [2017]; see U.S. Bank N.A. v Gordon, 158 AD3d 832, 834-835[2018]).
We agree with the Supreme Court's determination denying that branch of the defendant'smotion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst him as time-barred (see WellsFargo Bank, N.A. v Eitani, 148 AD3d 193, 196 [2017]). The defendant pointed to noevidence that the debt was accelerated prior to the filing of the complaint such that the statute oflimitations on the entire debt began to run at some earlier date (see Bank of N.Y. Mellon v Celestin,164 AD3d 733, 735 [2018]; U.S.Bank N.A. v Gordon, 158 AD3d 832, 836-837 [2018]).We also agree with the Supreme Court's determination denying that branch of the defendant'smotion which sought dismissal of the complaint on the ground that service violated GeneralBusiness Law § 13. The relevant language of that statute, which precludes themalicious service of process on Saturdays upon individuals who observe Saturday as a holy time(see General Business Law § 13), does not apply to the facts of this case,and, in any event, we agree with the court's determination that the defendant made no showing ofmalicious intent (see Chase Manhattan Bank v Powell, 111 Misc 2d 1011, 1013 [Sup Ct,Nassau County 1981]; see generallyJPMorgan Chase Bank, N.A. v Lilker, 153 AD3d 1243, 1245 [2017]).
The defendant's remaining contention is raised for the first time on appeal and not properlybefore this Court (see Mei Yun Li vQing He Xu, 38 AD3d 731, 732 [2007]). Dillon, J.P., Cohen, Duffy and Christopher,JJ., concur.