Secured Equities Investments, Inc. v. McFarland

• Decision Date: 30 December 2002
• Citation: 300 A.D.2d 1137,753 N.Y.S.2d 264
• Parties: SECURED EQUITIES INVESTMENTS, INC., Respondent,<BR>v.<BR>ORA LEE McFARLAND et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

300 A.D.2d 1137

753 N.Y.S.2d 264

SECURED EQUITIES INVESTMENTS, INC., Respondent,

v.ORA LEE McFARLAND et al., Appellants, et al., Defendants.

Decided December 30, 2002.

Present — Hayes, J.P., Wisner, Hurlbutt, Scudder and Gorski, JJ.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the cross motion of defendants Ora Lee McFarland and George L. Wheeler and dismissing the complaint against them and as modified the order is affirmed without costs.

Memorandum:

Supreme Court initially denied plaintiff's motion for summary judgment and granted the cross motion of Ora Lee McFarland and George L. Wheeler (defendants) for summary judgment dismissing the complaint against them as barred by the statute of limitations but thereafter granted that part of plaintiff's motion seeking reargument. Upon reargument, the court denied the cross motion of defendants, thereby reinstating the complaint against them. We agree with defendants that the court erred in denying their cross motion upon reargument.

On April 22, 1986, defendants executed a mortgage in favor of Freedlander, Inc., The Mortgage People, plaintiff's remote predecessor in interest, to secure a mortgage note. The mortgage recites that payments are to be made on a monthly basis, with payment in full due by April 28, 2001. The mortgage further recites that the mortgagee may accelerate the payment in full upon the default of the mortgagors only after sending the mortgagors a notice containing six specific points of information, advising of the default, and affording the mortgagors 30 days in which to cure the default. On July 11, 1989, North Carolina National Bank (NCNB), which had been assigned the mortgage, commenced a foreclosure action against defendants seeking $21,141.41 plus interest from March 28, 1988. The complaint in that action incorrectly alleged, inter alia, that the mortgage provided for acceleration by the mortgagee upon a 30-day default on an installment payment. Defendants defaulted in that action and NCNB obtained a default judgment of foreclosure and sale. The judgment was subsequently vacated and the complaint dismissed, however, based on NCNB's failure to seek entry of the default judgment in a timely manner (see CPLR 3215 [c]).

NCNB thereafter assigned the mortgage to plaintiff, which commenced the instant action on August 26, 1998. We agree with defendants that this action against them is barred by the statute of limitations and that the court therefore erred in denying their cross motion upon reargument. Defendants met their initial burden by establishing that plaintiff's predecessor in interest deemed the mortgage accelerated, foreclosed on the property, and obtained a default judgment (see generally Arbisser v Gelbelman, 286 AD2d 693, 694, lv denied 97 NY2d 612; Logue v Young, 94 AD2d 827; see also Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472). Plaintiff failed to submit evidence in admissible form, either initially or on reargument, to...