Wells Fargo Bank, N.A. v. Lefkowitz

• Decision Date: 03 April 2019
• Docket Number: Index No. 505810/15,2016–05696
• Citation: 171 A.D.3d 843,97 N.Y.S.3d 696
• Parties: WELLS FARGO BANK, N.A., respondent, v. Chaim LEFKOWITZ, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 843
97 N.Y.S.3d 696

WELLS FARGO BANK, N.A., respondent,
v.
Chaim LEFKOWITZ, appellant, et al., defendants.

2016–05696
Index No. 505810/15

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

Argued - December 13, 2018
April 3, 2019

Berg & David, PLLC, Brooklyn, N.Y. (Abraham David and Madeline Greenblatt of counsel), for appellant.

Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

97 N.Y.S.3d 698

DECISION & ORDER

171 A.D.3d 843

ORDERED that the order is affirmed, with costs.

In January 2005, the defendant Chaim Lefkowitz (hereinafter the defendant) executed a promissory note in favor of RBC Mortgage Company in the sum of $152,000. The note was secured by a mortgage on residential property in Brooklyn.

After the defendant defaulted on his payment obligations, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for RBC Mortgage Company, commenced an action to foreclose the mortgage (hereinafter the first action). In an order dated May 1, 2008, the Supreme Court granted MERS's motion to discontinue the first action.

By assignment dated February 11, 2010, the mortgage allegedly was assigned by MERS to the plaintiff. On or about February 17, 2010, the plaintiff commenced an action to foreclose the mortgage (hereinafter the second action). On or about June 15, 2010, the plaintiff commenced another action to foreclose the mortgage (hereinafter the third action). By stipulations dated September 24, 2010, the second and third actions were discontinued.

On May 12, 2015, the plaintiff commenced this action to foreclose the mortgage. The defendant interposed an answer asserting several affirmative defenses, including the statute of limitations and the plaintiff's lack of standing. Thereafter, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him on the grounds that the action was time-barred and the plaintiff lacked standing. The Supreme Court denied the motion, and the defendant appeals.

An action to foreclose a mortgage is subject to a six-year

171 A.D.3d 844

statute of limitations (see CPLR 213[4] ). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt" ( EMC Mtge. Corp. v. Patella , 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 ; see Kashipour v. Wilmington Sav. Fund Socy., FSB , 144 A.D.3d 985, 986, 41 N.Y.S.3d 738 ; Wells Fargo Bank, N.A. v. Burke , 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ; Wells Fargo Bank, N.A. v. Cohen , 80 A.D.3d 753, 754, 915 N.Y.S.2d 569 ). An acceleration of a mortgage debt can occur "when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due" ( Milone v. U.S. Bank N.A. , 164 A.D.3d 145, 152, 83 N.Y.S.3d 524 ).

Contrary to the defendant's contention, he failed to sustain his initial burden of demonstrating, prima facie, that this action was untimely. In support of his motion, the defendant submitted, inter alia, the order dated May 1, 2008, discontinuing the first action, and what appears to be a printout of the docket from the first action. The printout indicates that the summons and complaint were filed on November 1, 2007. In his reply papers,...