DEUTSCHE BANK NATIONAL TRUST COMPANY v. SWINSON (2023)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated March 5, 2020.  The order, insofar as appealed from, granted the cross-motion of the defendant Paul Swinson, in effect, for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In an order dated March 5, 2020, the Supreme Court, inter alia, granted the cross-motion of the defendant Paul Swinson, in effect, for summary judgment dismissing the complaint insofar as asserted against him as time-barred.  The plaintiff appeals.

Swinson established, prima facie, that this action to foreclose a mortgage was untimely by submitting the complaint in a prior action to foreclose the mortgage, which established that the statute of limitations expired before this action was commenced.  Contrary to the plaintiff's contention, in opposition, the plaintiff failed to raise a triable issue of fact as to whether this action was timely (see U.S. Bank N.A. v. 32–49 107 St., Inc., ––– A.D.3d ––––, 193 N.Y.S.3d 321, 2023 N.Y. Slip Op. 04333;  ARCPE 1, LLC v. DeBrosse, 217 A.D.3d 999, 1001, 193 N.Y.S.3d 51).

Accordingly, the Supreme Court properly granted Swinson's cross-motion, in effect, for summary judgment dismissing the complaint insofar as asserted against him.

BARROS, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.