YAKTE PROPERTIES LLC v. Capital One, N.A., et al., Defendants. (2025)

Order Supreme Court, New York County (Francis A. Kahn, III, J.), entered May 22, 2023, which, insofar as appealed from, denied defendant Todd A. Milner's cross-motion to dismiss the complaint based on documentary evidence and failure to state a claim and for summary judgment dismissing the complaint as barred by the statute of limitations, unanimously affirmed, without costs.

The court properly denied Milner's cross motion to dismiss pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7).  Milner did not make a pre-answer motion to dismiss or raise the defense based on documentary evidence pursuant to CPLR 3211(a)(1);  thus, any purported defense based on CPLR 3211(a)(1) is waived (see CPLR 3211[e]).  The court also properly declined to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action (see generally Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]).  Plaintiff's complaint alleges causes of action seeking foreclosure, as well as reformation of the legal description of the property in the CEMA mortgage, vacatur of the allegedly erroneous satisfactions, and vacatur of an allegedly erroneous affidavit of lost assignment.  Plaintiff may simultaneously maintain its foreclosure action while seeking to reform the subject mortgage (see e.g. Bank of Am., N.A. v. Pennicooke, 186 A.D.3d 545, 545, 129 N.Y.S.3d 445 [2d Dept. 2020]).

Milner's cross-motion pursuant to CPLR 3212 based on the statute of limitations was properly denied.  Milner failed to establish prima facie that the six-year-statute of limitations applies to the allegedly erroneous discharge of the original mortgage (see LNV Corp. v. Sorrento, 154 A.D.3d 840, 841, 62 N.Y.S.3d 181 [2d Dept. 2017]).  In any event, the allegedly erroneous satisfaction of the original mortgage is irrelevant because the original mortgage was incorporated into the later mortgage (see Ridgewood Sav. Bank v. Glickman, 197 A.D.3d 1189, 1190–1191, 151 N.Y.S.3d 363 [2d Dept. 2021]).  Milner submits no evidence to show that the subject CEMA mortgage has been satisfied.

Although plaintiff seeks to correct the allegedly erroneous description of the property in the CEMA mortgage, even in the absence of such correction, plaintiff may still be entitled to relief through an equitable lien on the property (see Federal Deposit Ins. Corp. v. Five Star Mgt., Inc., 258 A.D.2d 15, 21–22, 692 N.Y.S.2d 69 [1st Dept. 1999]).  Therefore, although the statute of limitations seeking reformation based on mistake may have passed (see CPLR 213[6]), defendant is not entitled to dismissal of the action.

We have considered Milner's remaining arguments and find them unavailing.