1900 CAPITAL TRUST III v. GUAMAN (2023)

Orders, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered May 3, 2022, which granted 1900 Capital Trust III's motion to dismiss the complaint in index No. 26962/2020E, and denied Maria C. Guaman's motion to dismiss the complaint as against her in index No. 36200/2020E, unanimously affirmed, without costs.

The mortgage foreclosure action brought by Capital Trust (index No. 36200/2020E) was not time-barred.  In Prof–2013–S3 Legal Tit. Trust II v. Guaman, 177 A.D.3d 545, 110 N.Y.S.3d 844 (1st Dept. 2019), we dismissed the prior foreclosure action on the ground that Capital Trust's predecessor in interest failed to mail Guaman a notice of default in accordance with the terms of the mortgage agreement, a condition precedent to accelerating the debt.  Because that purported acceleration was a nullity, the statute of limitations never accrued and, therefore, the present foreclosure action, commenced after the proper mailing of a default notice, was timely (see U.S. Bank N.A. v. Hazan, 176 A.D.3d 637, 109 N.Y.S.3d 646 [1st Dept. 2019]).  Given the timeliness of the foreclosure action, Guaman's action to quiet title (index No. 26962/2020E) cannot be maintained (see Retemiah v. Bank of N.Y. Mellon, 195 A.D.3d 649, 144 N.Y.S.3d 627 [2d Dept. 2021]).