Lavin v. Elmakiss
| Decision Date | 06 February 2003 |
| Parties | MARTIN V. LAVIN, Respondent,<BR>v.<BR>YAKOV ELMAKISS et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Crew III, J.
In May 1989, plaintiff purchased a mobile home park from defendant Elmakiss Realty Trust for $700,000. Defendant Yakov Elmakiss was the trustee of the trust. To finance the sale, plaintiff executed a mortgage in favor of Chase Lincoln Bank in the amount of $325,000 and another mortgage in favor of the trust for the remaining $375,000. In March 1991, plaintiff defaulted on the mortgage to the trust and, by letter dated April 25, 1991, the trust sent a written notice of default to plaintiff advising, inter alia, that it was accelerating the underlying debt. Plaintiff subsequently defaulted on the mortgage to Chase, prompting Chase to commence a foreclosure action. The mobile home park was sold for $435,000 in March 1994. In the interim, both the trust and Elmakiss filed for bankruptcy and, after satisfying Chase's senior mortgage, the surplus proceeds of approximately $58,000 was paid to the trust's bankruptcy trustee.
After apparently emerging from bankruptcy as the owner of the mortgage note from plaintiff, Elmakiss commenced an action thereon against plaintiff in New Hampshire. After successfully obtaining dismissal of that action based upon lack of personal jurisdiction, plaintiff commenced this action in October 1997 alleging, inter alia, fraud and misrepresentation and seeking a declaration that the note had been released, discharged or satisfied through bankruptcy or otherwise rendered unenforceable. Thereafter, in March 1998, defendants answered and asserted a counterclaim for the balance allegedly due and owing on the underlying note. Defendants thereafter moved for, inter alia, summary judgment dismissing the complaint and plaintiff cross-moved for partial summary judgment seeking, inter alia, a declaration that the note was unenforceable and dismissal of defendants' counterclaim for foreclosure. Following additional discovery, Supreme Court ultimately granted plaintiff the foregoing relief. Defendants' subsequent motion to renew was denied and this appeal ensued.
We affirm. The six-year statute of limitations in a mortgage foreclosure action begins to run from the due date for each unpaid installment unless the debt has been accelerated; once the debt has been accelerated by a demand or commencement of an action, the entire sum becomes due and the...
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...act of acceleration may be in the form of a demand or through the commencement of a foreclosure action. See Lavin v. Elmakiss , 302 A.D.2d 638, 754 N.Y.S.2d 741, 743 (3d Dep't 2003) ("[O]nce the debt has been accelerated by a demand or commencement of an action, the entire sum becomes due a......
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