NATIONAL HERITAGE LIFE INSURANCE COMPANY IN LIQUIDATION v. HILL STREET ASSOCIATES (1999)

In an action to foreclose a mortgage, the defendant Hill Street Associates appeals from an order of the Supreme Court, Westchester County (Coppola, J.), entered December 7, 1998, which granted the plaintiff's motion for summary judgment against it and denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly determined that the four installment payments made by the appellant after January 4, 1992, the date upon which the entire balance of principal and interest on the note and mortgage was due and payable, extended the commencement date for the Statute of Limitations.   The payments demonstrated an acknowledgement by the appellant that it still owed outstanding amounts on the note and mortgage, and created an implied promise by the appellant to pay those outstanding amounts (see, General Obligations Law § 17-107;  Petito v. Piffath, 85 N.Y.2d 1, 8, 623 N.Y.S.2d 520, 647 N.E.2d 732, cert. denied 516 U.S. 864, 116 S.Ct. 177, 133 L.Ed.2d 116;  Roth v. Michelson, 55 N.Y.2d 278, 281, 449 N.Y.S.2d 159, 434 N.E.2d 228).  Thus, because the last payment was made on May 12, 1993, this action, filed on January 26, 1998, was timely.

The parties' remaining contentions either need not be addressed in light of this determination or are improperly raised for the first time on appeal.

MEMORANDUM BY THE COURT.