Wells Fargo Bank, N.A. v. Cohen

• Decision Date: 25 January 2010
• Citation: Wells Fargo Bank, N.A. v. Cohen, 915 N.Y.S.2d 569, 80 A.D.3d 753 (N.Y. App. Div. 2010)
• Parties: WELLS FARGO BANK, N.A., appellant, v. Chana COHEN, etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 569

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 foreclosureaction did not expire six years after the June 2000 default ( see CPLR 213[4] ).

"[W]ith respect to a mortgage payable in installments, there are 'separate causes of action for each installment accrued, and the Statute of Limitations [begins] to run, on the date each installment [becomes] due' " ( Loiacono v. Goldberg, 240 A.D.2d 476, 477, 658 N.Y.S.2d 138, quoting Pagano v. Smith, 201 A.D.2d 632, 633, 608 N.Y.S.2d 268; see Lavin v. Elmakiss, 302 A.D.2d 638, 639, 754 N.Y.S.2d 741; Zinker v. Makler, 298 A.D.2d 516, 748 N.Y.S.2d 780). Accordingly, even though the last payment on the subject mortgage was June 2000, and this action was not commenced until June 2008, the entire action is not time-barred. Instead, as the plaintiff conceded before the Supreme Court, in the event that it prevailed in this action, its recovery would be limited to only those unpaid installments which accrued within the six-year period of limitations preceding its June 2008 commencement of this foreclosure action, that is, the unpaid installments which accrued on or after July 1, 2002 ( see EMC Mtge. Corp. v. Suarez, 49 A.D.3d 592, 593, 852 N.Y.S.2d...