UMLIC VP LLC v. MELLACE (2005)

In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Nassau County (Cozzens, J.), dated October 1, 2004, which granted the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiff's contention, the Supreme Court correctly determined that the mere acceptance of a partial payment of the accelerated debt by the previous holder of the subject note was not an affirmative act revoking the acceleration and thereby halting the running of the statute of limitations (see Lavin v. Elmakiss, 302 A.D.2d 638, 754 N.Y.S.2d 741).   Moreover, the plaintiff's claim is also refuted by the fact that its assignor advised the obligors on the note that they would remain liable for the balance of the accelerated debt even after the partial payment was accepted (see generally P.T. Bank Cent. of Asia v. Ho Ho Ho Realty, 273 A.D.2d 212, 709 N.Y.S.2d 116;  Southold Sav. Bank v. Cutino, 118 A.D.2d 555, 499 N.Y.S.2d 169).   Accordingly, “the record is barren of any affirmative act of revocation” (EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 606, 720 N.Y.S.2d 161;  see Federal Natl. Mtge. Assn. v. Mebane, 208 A.D.2d 892, 894, 618 N.Y.S.2d 88).   Since the plaintiff failed to timely commence this action within the applicable six-year limitations period (see CPLR 213), the Supreme Court properly dismissed the complaint (see Clayton Natl., Inc. v. Guldi, 307 A.D.2d 982, 763 N.Y.S.2d 493;  Arbisser v. Gelbelman, 286 A.D.2d 693, 730 N.Y.S.2d 157).