Wells Fargo Bank, N.A. v. Cohen
| Decision Date | 25 January 2010 |
| Citation | 80 A.D.3d 753,915 N.Y.S.2d 569 |
| Parties | WELLS FARGO BANK, N.A., appellant, v. Chana COHEN, etc., et al., respondents, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
80 A.D.3d 753
WELLS FARGO BANK, N.A., appellant,
v.
Chana COHEN, etc., et al., respondents, et al., defendants.
Supreme Court, Appellate Division, Second Department, New York.
Jan. 25, 2010.
Steven J. Baum, P.C., Amherst, N.Y. (Jacob W. Osher of counsel), for appellant.
Martin Kurlander, Brooklyn, N.Y., for respondent Chana Cohen.
PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated June 19, 2009, which denied its motion for summary judgment on the complaint and granted the cross motion of the defendant Chana Cohen, in effect, to dismiss the complaint insofar as asserted against her on the ground that the action is barred by the statute of limitations.
ORDERED that the order is modified, on the law, by (1) deleting the provision thereof granting that branch of the cross motion of the defendant Chana Cohen which was, in effect, to dismiss the complaint insofar as asserted against her on the ground that the action is barred by the statute of limitations to the extent that the complaint relates to unpaid mortgage installments which accrued on or after July 1, 2002, and substituting therefor a provision denying that branch of the cross motion, and (2) deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment with respect to those causes of action which relate to unpaid mortgage installments which accrued on or after July 1, 2002, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
In this mortgage foreclosure action, the default in payment occurred in June 2000 but the action was not commenced until June 2008. The Supreme Court dismissed the complaint, concluding the action was time-barred because "[m]ore than six years elapsed since the last mortgage payment was made and the mortgage balance was accelerated." However, the mortgage and note do not provide that the entire debt represented by the mortgage was to be automatically accelerated upon the borrower's default in an installment payment, nor did the plaintiff ever exercise its option under the note to accelerate the debt. Therefore, the statute of limitations for the commencement of a foreclosure
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