Kashipour v. Wilmington Sav. Fund Soc'y, FSB

• Decision Date: 23 November 2016
• Citation: Kashipour v. Wilmington Sav. Fund Soc'y, FSB, 144 A.D.3d 985, 41 N.Y.S.3d 738, 2016 N.Y. Slip Op. 7928 (N.Y. App. Div. 2016)
• Parties: Israel KASHIPOUR, et al., appellants, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., respondent.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 985

41 N.Y.S.3d 738

2016 N.Y. Slip Op. 07928

Israel KASHIPOUR, et al., appellants,

v.WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 23, 2016.

Berg & David, PLLC, Brooklyn, N.Y. (Abraham David of counsel), for appellants.

Day Pitney LLP, New York, N.Y. (Rachel G. Packer and Alfred W.J. Marks of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.

In an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Parga, J.), dated January 25, 2016, which denied their motion for summary judgment on the complaint.

ORDERED that the order is reversed, on the law, with costs, the plaintiffs' motion for summary judgment on the complaint is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment canceling and discharging of record the subject mortgage.

The plaintiffs commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage held by the defendant. The plaintiffs alleged that the mortgage was unenforceable since the debt secured by the mortgage had been accelerated, and the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage had expired. The plaintiffs moved for summary judgment on the complaint. As proof that the mortgage debt had been accelerated more than six years before the commencement of this action, the plaintiffs submitted a copy of the summons and complaint in a mortgage foreclosure action commenced by the defendant's predecessor-in-interest on August 20, 2009. They also submitted a copy of an order dismissing that action without prejudice for failure to comply with the notice requirements of RPAPL 1303. The plaintiffs alleged that no other foreclosure action had been commenced after the dismissal of that foreclosure action, and that they had remained in possession of the subject property since they purchased it in 2005. The defendant failed to oppose the motion. Nonetheless, in the order appealed from, the Supreme Court denied the motion on the ground that the plaintiffs were required to establish that the foreclosure action had been dismissed on the merits. We reverse.

As relevant here, RPAPL 1501(4) authorizes a person having an estate or interest in real property subject to a mortgage to maintain an action against another to secure the cancellation and discharge of record of such encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided, however, that the mortgagee or its successor is not in possession of the affected real property at the time of the commencement of the action (see RPAPL 1501[4] ). An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). “The law is well settled that, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” (EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605, 720...