Zinker v. Makler

• Decision Date: 21 October 2002
• Parties: EDWARD ZINKER, Respondent,<BR>v.<BR>CELIA MAKLER, Defendant,<BR>BARRY BENDETT et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

298 A.D.2d 516

748 N.Y.S.2d 780

EDWARD ZINKER, Respondent,

v.CELIA MAKLER, Defendant,BARRY BENDETT et al., Appellants, et al., Defendants.

Decided October 21, 2002.

O'Brien, J.P., Krausman, Townes and Cozier, JJ., concur.

Ordered that the appeal from so much of the order dated October 22, 2001, as denied that branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,

Ordered that the order dated June 7, 2001, is reversed insofar as appealed from, on the law, the plaintiff's motion is denied, and, upon searching the record, summary judgment is granted to the appellants dismissing the complaint insofar as asserted against them; and it is further,

Ordered that the appeal from so much of the order dated October 22, 2001, as denied that branch of the motion which was for leave to renew is dismissed as academic in light of our determination of the appeal from the order dated June 7, 2001; and it is further,

Ordered that one bill of costs is awarded to the appellants.

Although the appellants never cross-moved for summary judgment dismissing the foreclosure action, they may raise on appeal the Supreme Court's failure to grant them that relief because both the Supreme Court and this Court have the authority pursuant to CPLR 3212 (b) to search the record and award summary judgment to a nonmoving party (see CPLR 3212 [b]; QDR Consultants & Dev. Corp. v Colonia Ins. Co., 251 AD2d 641, 643; Dunham v Hilco Constr. Co., 89 NY2d 425; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106). Moreover, the issue raised by the appellants was the subject of the motion before the Supreme Court (see Dunham v Hilco Constr. Co., supra).

The statute of limitations in a mortgage foreclosure action begins to run six years from the due date for each unpaid installment or the time the mortgagee is entitled to demand full payment, or when the mortgage debt has been accelerated (see Serapilio v Staszak, 255 AD2d 824; Loiacono v Goldberg, 240 AD2d 476, 477; Pagano v Smith, 201 AD2d 632, 633). Furthermore, 11 USC § 108 (a) provides that if the period within which the debtor may commence an action has not expired before the date of filing of a bankruptcy petition, the bankruptcy trustee's time to commence the action is extended until the later of the expiration of the period of limitations or "two years after the order for relief" (Weiner v Sprint Mtge. Bankers Corp., 235 AD2d 472, 473).

In this case, the mortgage contained a final payment provision which stated that the entire debt must be paid by November 1, 1992. Thus, under CPLR 213 (4), the mortgagee had until November 1, 1998, to commence a...