BANK NATIONAL ASSOCIATION v. New York City Environmental Control Board, et al., Defendants. (2019)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered November 15, 2017, which, upon granting defendant Pierre Charles's motion for renewal and reargument, vacated an order, same court and Justice, entered on or about June 1, 2017, and granted Charles's motion to amend his answer to the extent of deeming it served and filed as of November 9, 2017, unanimously affirmed, without costs.

Charles contends that this mortgage foreclosure action is time-barred, because the six year statute of limitations was triggered by a prior foreclosure action, in which plaintiff accelerated the mortgage debt.  Plaintiff counters that, because it had failed to comply with a contractual 30–day notice requirement in accordance with section 22 of the mortgage, the mortgage was not accelerated by the prior action.

In the prior order, Supreme Court granted plaintiff's motion for summary judgment, finding that plaintiff's voluntary discontinuance of the prior action for its failure to comply with section 22 of the mortgage did not accelerate the mortgage in the prior action.

Charles moved for leave to renew and reargue on the grounds that acceleration took place when the 2007 foreclosure action was commenced regardless of whether or not plaintiff had complied with the 30–day notice requirement of section 22.  He argued that the provision only requires notice of a default, but it is not a condition precedent required to accelerate the loan.

Acceleration only takes place when the holder of the note and mortgage takes “affirmative action ․ evidencing the holder's election” to do so (Wells Fargo Bank N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 [2d Dept. 2012]).  This may be accomplished in the form of a notice to the borrower (see Deutsche Bank Natl. Trust Co. v. Royal Blue Realty Holdings, Inc., 148 A.D.3d 529, 530, 48 N.Y.S.3d 597 [1st Dept. 2017], lv denied 30 N.Y.3d 959, 64 N.Y.S.3d 660, 86 N.E.3d 553 [2017]).  Affirmative action can also occur when the first foreclosure action is commenced (see Capital One, N.A. v. Saglimbeni, 170 A.D.3d 508, 509, 96 N.Y.S.3d 48 [1st Dept. 2019];  HSBC Bank USA v. Kirschenbaum, 159 A.D.3d 506, 506, 73 N.Y.S.3d 41 [1st Dept. 2018]).  The prior foreclosure action sought the accelerated mortgage amount.

There is an issue of fact in this particular case regarding whether plaintiff's discontinuance of the prior foreclosure action de-accelerated the mortgage (see Capital One, N.A., supra).  We note that neither the motion seeking discontinuance or the order entered granting that relief provided that the mortgage was de-accelerated or that plaintiff would now be accepting installment payments from the defendant (Bank of N.Y. Mellon v. Craig, 169 A.D.3d 627, 93 N.Y.S.3d 425 [2d Dept. 2019]).  We have considered the remaining arguments and find them unavailing.