PATMOS FIFTH REAL ESTATE INC v. Raba Abramov, et al., Defendants. [And a Third Party Action]

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Supreme Court, Appellate Division, First Department, New York.

PATMOS FIFTH REAL ESTATE INC., et al., Plaintiffs–Respondents, v. MAZL BUILDING LLC, et al., Defendants–Appellants, Raba Abramov, et al., Defendants. [And a Third Party Action]

8377N

Decided: February 07, 2019

Sweeny, J.P., Tom, Webber, Kahn, Kern, JJ. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City (James E. Durso of counsel), for appellants. Andrew T. Hambelton, New York, for respondents.

Defendants' proposed counterclaim for equitable subrogation relates to their counterclaim for foreclosure of a consolidated mortgage and is barred by the applicable six-year statute of limitations (see CPLR 213[1];  see Wells Fargo Bank, N.A. v. Burke, 155 A.D.3d 668, 670, 64 N.Y.S.3d 228 [2d Dept. 2017] ).  The equitable subrogation claim is founded upon the interest of nonparties Avi Weiss, Batsheba Weiss, Zvi Gotian, and Hana Gotian (collectively, Weiss) in the consolidated mortgage—an interest that was previously undisclosed—which accrued when plaintiffs defaulted under the terms of the consolidated mortgage on October 1, 2009.  An equitable subrogation right would place defendants in Weiss's shoes, with no greater legal rights than Weiss possessed with respect to the mortgage.

Similarly, defendants' proposed counterclaim for a declaration pursuant to RPAPL article 15 that they are the owner and holder of the 62.5% interest that Weiss held in the consolidated mortgage is time-barred.