HSBC BANK USA v. 400 (2018)

Order and judgment (one paper), Supreme Court, New York County (Shlomo S. Hagler, J.), entered November 29, 2016, which granted defendant Joshua Kirschenbaum's motion to dismiss the complaint in this mortgage foreclosure proceeding, unanimously affirmed, with costs.

Defendant borrower Kirschenbaum made a prima facie showing that this action was untimely.  The mortgage was accelerated on August 3, 2009 when plaintiff commenced the first foreclosure action, the statute of limitations expired on August 3, 2015 (see CPLR 213[4] ), and plaintiff did not file this action until August 27, 2015.

In opposition, plaintiff failed to raise a question of fact as to whether the statute of limitations had been tolled (Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d 1085, 1085–1086 [2d Dept. 2016] ).  We reject plaintiff's argument that the 90–day notice under Real Property Actions and Proceedings Law (RPAPL) § 1304 tolled the statute of limitations for 90 days. CPLR 204(a) authorizes tolling of a statute of limitations and provides that “[w]here the commencement of an action has been stayed by a court or by a statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced.”  Proper service of the RPAPL 1304 notice is a condition precedent to the commencement of a foreclosure action (HSBC Bank USA v. Rice, 155 A.D.3d 443, 443, 63 N.Y.S.3d 382 [1st Dept. 2017] ).  A statutory prohibition and a condition precedent are separate concepts, and a plaintiff has complete control over the acts necessary to effectuate compliance with a condition precedent (Barchet v. New York City Tr. Auth., 20 N.Y.2d 1, 6, 281 N.Y.S.2d 289, 228 N.E.2d 361 [1967] ).

Here, plaintiff had complete control over when to serve the RPAPL 1304 notice, and could have done so at least 90 days prior to the expiration of the statute of limitations.  Plaintiff did not serve the notice until May 26, 2015, less than 90 days before the expiration of the statute of limitations.  In addition, there is nothing in RPAPL 1302 or 1304 that proscribes the prosecution of the action.

Andersen v. Long Is. R.R., 59 N.Y.2d 657, 463 N.Y.S.2d 407, 450 N.E.2d 213 (1983) and Burgess v. Long Is. R.R. Auth., 79 N.Y.2d 777, 579 N.Y.S.2d 631, 587 N.E.2d 269 (1991), cases upon which plaintiff relies, do not involve RPAPL 1304.

Plaintiff's argument that the mortgage loan was de-accelerated when it moved to discontinue the first mortgage foreclosure proceeding is improperly raised for the first time on appeal (see Lutin v. SAP V/A Atlas 845 WEA Assoc. NF LLC, 157 A.D.3d 466, 66 N.Y.S.3d 439 [1st Dept. 2018] ).  In any event, the argument is unavailing (see EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 606, 720 N.Y.S.2d 161 [2d Dept. 2001];  Federal Natl. Mtge. Assn. v. Mebane, 208 A.D.2d 892, 894, 618 N.Y.S.2d 88 [2d Dept. 1994] ).