Pagano v. Smith

Decision Date22 February 1994
Citation201 A.D.2d 632,608 N.Y.S.2d 268
PartiesJohn PAGANO, Respondent, v. Jimmy SMITH, Appellant.
CourtNew York Supreme Court — Appellate Division

Goldweber and Hershkowitz, Mineola (Seth D. Bykofsky, on the brief), for appellant.

Pelle & Pelle, Massapequa (Domenick A. Pelle, of counsel and Nicholas Panzini, on the brief), for respondent.

Before MANGANO, P.J., and O'BRIEN, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mortgage, the defendant appeals from an order of the Supreme Court, Nassau County (Goldstein, J.), dated October 9, 1991, which denied his motion to dismiss the complaint and granted the plaintiff's motion to amend the complaint.

ORDERED that the order is affirmed, with costs.

In 1977, the plaintiff John Pagano loaned the defendant Jimmy Smith $30,000 and received a mortgage as security for the loan. In a declaratory judgment action commenced in 1979, Smith sought cancellation of the mortgage and Pagano counter-claimed to recover the debt. While that action was pending, Pagano commenced the instant action in 1986 to foreclose on the mortgage. The complaint in the foreclosure action included a statement that no other action had been commenced for the recovery of the mortgage debt. In 1987, following the trial of the declaratory judgment action, Pagano was awarded a judgment on the mortgage debt in the principal amount of $30,000 (see, Smith v. Pagano, 154 A.D.2d 586, 546 N.Y.S.2d 415).

Smith subsequently moved in 1991 to dismiss the foreclosure action on the grounds that it was barred by the Statute of Limitations and that RPAPL 1301 precluded Pagano from bringing the foreclosure action while the action to recover the mortgage debt was pending. At the same time, Pagano moved for permission to amend the complaint in order to comply with RPAPL 1301(2), which provides that "[t]he complaint shall state whether any other action has been brought to recover * * * [the] debt". The Supreme Court granted Pagano's motion to amend and denied Smith's motion to dismiss the complaint.

We conclude that the court did not err in permitting Pagano to amend his complaint. Pursuant to RPAPL 1301(1), an action may be maintained to foreclose the mortgage after final judgment for the plaintiff has been rendered in an action to recover the mortgage debt, provided an execution against the property of the defendant has been issued upon the judgment to the sheriff and has been returned wholly or partly unsatisfied (see, Goddard v. Johnson, 96 Misc.2d...

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21 cases
  • Christiana Trust v. Barua
    • United States
    • New York Supreme Court — Appellate Division
    • 3 Junio 2020
    ...N.A. v. Cohen, 80 A.D.3d 753, 754, 915 N.Y.S.2d 569 ; Loiacono v. Goldberg, 240 A.D.2d 476, 477, 658 N.Y.S.2d 138 ; Pagano v. Smith, 201 A.D.2d 632, 633, 608 N.Y.S.2d 268 ). "[T]he cause of action accrues when the plaintiff possesses a legal right to demand payment" ( Swift v. New York Med.......
  • Freedom Mortg. Corp. v. Engel
    • United States
    • New York Court of Appeals Court of Appeals
    • 18 Febrero 2021
    ...N.E.2d 1187 [2012] ; e.g., Loiacono v. Goldberg, 240 A.D.2d 476, 477, 658 N.Y.S.2d 138 [2d Dept. 1997] ; Pagano v. Smith, 201 A.D.2d 632, 633–634, 608 N.Y.S.2d 268 [2d Dept. 1994] ) but a default alone does not trigger the statute of limitations relating to a foreclosure action (see Phoenix......
  • U.S. Bank Nat'l Ass'n v. Gordon
    • United States
    • New York Supreme Court — Appellate Division
    • 28 Febrero 2018
    ...N.A. v. Cohen, 80 A.D.3d 753, 754, 915 N.Y.S.2d 569 ; Loiacono v. Goldberg, 240 A.D.2d 476, 477, 658 N.Y.S.2d 138 ; Pagano v. Smith, 201 A.D.2d 632, 633, 608 N.Y.S.2d 268 ). However, "even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is du......
  • Wells Fargo Bank, N.A. v. Burke
    • United States
    • New York Supreme Court — Appellate Division
    • 17 Abril 2012
    ...N.A. v. Cohen, 80 A.D.3d 753, 754, 915 N.Y.S.2d 569; Loiacono v. Goldberg, 240 A.D.2d 476, 477, 658 N.Y.S.2d 138; Pagano v. Smith, 201 A.D.2d 632, 633, 608 N.Y.S.2d 268). However, “even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due a......
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2 books & journal articles
  • Chapter 30 STATUTES OF LIMITATIONS
    • United States
    • New York State Bar Association Contract Doctrine and Marital Agreements in New York
    • Invalid date
    ...the damages occasioned each time a breach of the obligation to repair the bonded roof occurred.") (citations omitted); Pagano v. Smith, 201 A.D.2d 632, 608 N.Y.S.2d 268 (2d Dep't 1994) (Separate causes of action for each installment accrued, and the statute of limitations began to run on th......
  • 13.15 2. Statute Of Limitations
    • United States
    • New York State Bar Association Real Estate Titles (NY) Chapter 13 Mortgage Foreclosures and Other Actions Affecting Title
    • Invalid date
    ...Inc., 81 N.Y.2d 138, 141, 596 N.Y.S.2d 752 (1993); Fulgenzi v. Rink, 253 A.D.2d 846, 678 N.Y.S.2d 360 (2d Dep’t 1998); Pagano v. Smith, 201 A.D.2d 632, 633, 608 N.Y.S.2d 268 (2d Dep’t 1993); Business Loan Center v. Wagner, 31 A.D.3d 1122, 818 N.Y.S.2d 406 (4th Dep’t 2006).[2108] . EMC Mtge.......

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