RCR Services Inc. v. Herbil Holding Co.

• Decision Date: 01 July 1996
• Citation: 229 A.D.2d 379,645 N.Y.S.2d 76
• Parties: RCR SERVICES INC. d/b/a Mortgage Default Services Company, Respondent, v. HERBIL HOLDING CO., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 76

645 N.Y.S.2d 76

229 A.D.2d 379

RCR SERVICES INC. d/b/a Mortgage Default Services Company, Respondent, v. HERBIL HOLDING CO., Appellant, et al., Defendants.

Supreme Court, Appellate Division Second Department.

July 1, 1996.

Steven F. Lowenhar, Mineola, for appellant.

Deutsch & Schneider, Glendale (Joshua R. Deutsch, of counsel), for respondent.

Before RITTER, J.P., and COPERTINO, HART and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mortgage, the defendant Herbil Holding Co. appeals from an order of the Supreme Court, Suffolk County (Underwood, J.) dated February 6, 1995, which granted the plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this foreclosure action against, inter alia, the defendant Herbil Holding Co. (hereinafter Herbil) to foreclose a mortgage. "It is settled that in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default * * * When a plaintiff does so, it is incumbent upon the defendant to assert any defenses which could properly raise a viable question of fact as to his default" (Village Bank v. Wild Oaks Holding, 196 A.D.2d 812, 812, 601 N.Y.S.2d 940). Here, the plaintiff has established such a prima facie case. In response, Herbil failed to raise a triable issue of fact as to the substantive merits of the claim. Although Herbil argues that the complaint must nonetheless be dismissed because, inter alia, the plaintiff lacks standing and because the proceeding is barred by the relevant six year Statute of Limitations (see, CPLR 213[4] ), these contentions lack merit.

As is conceded by Herbil, " 'the United States is not bound by state Statutes of Limitations or subject to the defense of laches' " (Matter of Feinberg, 18 N.Y.2d 499, 504, 277 N.Y.S.2d 249, 223 N.E.2d 780, quoting United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283; see also, Cracco v. Cox, 66 A.D.2d 447, 414 N.Y.S.2d 404; Westnau Land Corp. v. United States Small Business Admin., 2nd Cir., 1 F.3d 112; United States v. 93 Court Corp., 2nd Cir., 350 F.2d 386, cert. denied 382 U.S. 984, 86 S.Ct. 560, 15 L.Ed.2d 473).

"The policy underlying this exception is that the failure of a government employee to bring an action within the time prescribed by a state statute of limitations should not bar the government from bringing the action if the action is one to enforce public rights or to protect the public fisc. This rule allows the government to maintain belated actions to enforce public rights regardless of the 'governmental' or 'business' nature of the government-sponsored activity that created the rights" (United States v. 93 Court Corp., supra, at 389; see also, United States v. Summerlin, supra; Wright, Federal Courts § 22, at 127 [5th ed].

Here, the plaintiff, although not the Federal government, has submitted evidence sufficient to determine as a matter of law that it is prosecuting this claim as assignee/agent of the Secretary of Housing and Urban Development [hereinafter HUD] and that the ultimate benefits from the foreclosure will flow to HUD. Accordingly, in view of, inter alia, the goals and principles upon which it is premised, we hold that the plaintiff, as assignee/agent of HUD, is entitled to HUD's immunity from the state Statute of Limitations (see, 6 NY Jur 2d, Assignments, §§ 49, 71; cf., Travelers Indem. Co. v. Agoli...