Vargas v. Deutsche Bank Nat'l Trust Co.

• Decision Date: 31 January 2019
• Docket Number: 8276,Index 302647/16
• Citation: Vargas v. Deutsche Bank Nat'l Trust Co., 168 A.D.3d 630, 93 N.Y.S.3d 32 (N.Y. App. Div. 2019)
• Parties: Juan VARGAS, Plaintiff–Respondent, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 630

93 N.Y.S.3d 32

Juan VARGAS, Plaintiff–Respondent,

v.DEUTSCHE BANK NATIONAL TRUST COMPANY, Defendant–Appellant.

8276

Index 302647/16

Supreme Court, Appellate Division, First Department, New York.

ENTERED: JANUARY 31, 2019

Greenberg Traurig, LLP, New York (Brian Pantaleo of counsel), for appellant.

Steinberg & Associates, Kew Gardens (Herbert N. Steinberg of counsel), for respondent.

Richter, J.P., Manzanet–Daniels, Tom, Kahn, Singh, JJ.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about October 19, 2017, which, upon renewal, denied defendant's motion to dismiss the complaint and granted plaintiff's cross motion for summary judgment declaring plaintiff's property free and clear of all liens and encumbrances by defendant, unanimously affirmed, with costs.

The motion court correctly determined that defendant was time-barred from commencing a foreclosure action against plaintiff's mortgaged property because more than six years had passed from the date that the debt on the mortgage was accelerated ( CPLR 213[4] ). The 2008 letter from defendant's predecessor-in-interest informed plaintiff that his debt "will [be] accelerate[d]" and "foreclosure proceedings will be initiated" if he failed to cure his default within 32 days of the letter. The letter highlighted that time was of the essence and it is undisputed that plaintiff did not cure his default within the time period.

We have held that this language constitutes a clear and unequivocal intent to accelerate the loan balance and commence the statute of limitations on the entire mortgage debt ( Deutsche Bank Natl. Trust Co. v. Royal Blue Realty Holdings, Inc., 148 A.D.3d 529, 48 N.Y.S.3d 597 [1st Dept. 2017], lv denied 30 N.Y.3d...