VAFAKOS v. BA LLC (2007)

Order and judgment (one paper), Supreme Court, Bronx County (Barry Salman, J.), entered on or about December 4, 2006, which, inter alia, granted defendant BA Mortgage LLC's motion for summary judgment dismissing the complaint as against it, and directed that the Officer of the City Register of the City of New York, Bronx County, mark and correct its records to reflect that the mortgage made by plaintiff to the Knight defendants “be deemed satisfied,” unanimously affirmed, without costs.

This mortgage foreclosure action is untimely, having been commenced more than six years subsequent to the date of the underlying loan's maturity.   Even if, as he contends, plaintiff mortgagee was unaware of the apparent theft by one Greenblatt of the mortgage pay-off in 1993, that would not suffice to toll the running of the statutory period.   There is no evidence of fraud on the part of defendant-respondent (see Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 403, 599 N.Y.S.2d 501, 615 N.E.2d 985 [1993] ).   In any event, it is clear that plaintiff had timely notice of Greenblatt's dishonesty and could with reasonable diligence have discovered the theft (see CPLR 203 [g] ).  Plaintiff's contention that defendant mortgagors improperly issued the mortgage pay-off to attorney Greenblatt, rather than to him as mortgagee, is without merit, since it is clear from the record that Greenblatt had been cloaked by plaintiff with at least apparent authority to receive the pay-off (see Hallock v. State of New York, 64 N.Y.2d 224, 231-232, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984];   Sabo v. Evans, 276 A.D.2d 477, 714 N.Y.S.2d 93 [2000] ).

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