NORTH SHORE INVESTORS REALTY GROUP LLC v. TRAINA (2019)

DECISION & ORDER

ORDERED that the judgment of foreclosure and sale is affirmed, with costs.

On August 21, 2015, the plaintiff commenced this action against the defendants to foreclose a mortgage encumbering residential real property.  The defendants moved pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the six-year statute of limitations.  They argued that the mortgage was accelerated by a letter dated May 30, 2008, in which the plaintiff's predecessor-in-interest advised the defendants that, if they failed to pay the outstanding arrears due under the loan within 30 days, the “loan shall be accelerated effective the first day following expiration of the thirty day period.”  The plaintiff opposed the defendants' motion, and in an order dated January 15, 2016, the Supreme Court denied the motion.  Thereafter, the court granted a motion by the plaintiff, inter alia, for summary judgment on the complaint and, subsequently, entered a judgment of foreclosure and sale in favor of the plaintiff.  The defendants appeal.

“To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired” (U.S. Bank N.A. v. Gordon, 158 A.D.3d 832, 834–835, 72 N.Y.S.3d 156 [internal quotation marks omitted];  see Campone v. Panos, 142 A.D.3d 1126, 1127, 38 N.Y.S.3d 226;  Stewart v. GDC Tower at Greystone, 138 A.D.3d 729, 30 N.Y.S.3d 638).  “If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period” (U.S. Bank N.A. v. Gordon, 158 A.D.3d at 835, 72 N.Y.S.3d 156 [internal quotation marks omitted];  see Stewart v. GDC Tower at Greystone, 138 A.D.3d at 730, 30 N.Y.S.3d 638;  Barry v. Cadman Towers, Inc., 136 A.D.3d 951, 952, 25 N.Y.S.3d 342).  Actions to foreclose upon a mortgage are governed by a six-year statute of limitations (see CPLR 213[4];  Milone v. U.S. Bank N.A., 164 A.D.3d 145, 83 N.Y.S.3d 524;  Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193, 197, 47 N.Y.S.3d 80;  Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 A.D.3d 985, 986, 41 N.Y.S.3d 738;  Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540).

Here, the defendants failed to meet their prima facie burden of establishing that the time within which to commence the action had expired, as the letter dated May 30, 2008, “was nothing more than a letter discussing acceleration as a possible future event, which does not constitute an exercise of the mortgage's optional acceleration clause” (21st Mtge. Corp. v. Adames, 153 A.D.3d 474, 475, 60 N.Y.S.3d 198;  see Milone v. U.S. Bank N.A., 164 A.D.3d at 152, 83 N.Y.S.3d 524).  Since the defendants did not contend that any other act by the plaintiff or its predecessor-in-interest accelerated the loan, the burden never shifted to the plaintiff to “present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely” (U.S. Bank N.A. v. Martin, 144 A.D.3d 891, 892, 41 N.Y.S.3d 550;  see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Accordingly, we agree with the Supreme Court's determination to deny the defendants' motion to dismiss the complaint.

MASTRO, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.