Sarva v. Chakravorty
| Decision Date | 08 November 2006 |
| Docket Number | 2006-01769. |
| Citation | 826 N.Y.S.2d 74,34 A.D.3d 438,2006 NY Slip Op 08103 |
| Parties | RAMESH SARVA et al., Respondents, v. AMITAVA CHAKRAVORTY et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the judgment is affirmed, with costs.
Contrary to the defendants' contention, the record fails to establish a clear and unequivocal acceleration of the mortgage debt by the plaintiffs in this case. While the plaintiff mortgagee Ramesh Sarva testified regarding his belief that he sent a letter to the defendant mortgagor Kamal Chakraverty in June 1988 expressing his desire "to get paid in full," no such letter was admitted into evidence at trial, and Chakraverty adamantly insisted that he never received the letter or any other communication accelerating the debt. Moreover, it is undisputed that the defendants continued to make, and the plaintiffs continued to accept, periodic installment payments on the note for years after June 1988, thereby negating the contention that the debt had been accelerated. Accordingly, this action to recover on the note was timely commenced within six years after the note matured, and the trial court properly denied the defendants' application to dismiss the action as time-barred (see CPLR 213 [4]).
The defendants' remaining contention is improperly raised for the first time on appeal (see Sandoval v Juodzevich, 293 AD2d 595 [2002]), and we decline to reach it since the plaintiffs did not have an opportunity to present opposing evidence with regard to the effect of the partial payments made by the defendants (see Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757 [1985]; see generally Education Resources Inst., Inc. v Piazza, 17 AD3d 513 [2005]; Costantini v Bimco Indus., 125 AD2d 531 [1986]; Bernstein v Kaplan, 67 AD2d 897 [1979]).
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