Everhome Mtge. Co. v. Aber, 195 A.D.3d 682

Background

Aber executed a $368,000 note in April 2003 secured by a residential mortgage; payments allegedly defaulted beginning May 1, 2008.
Fairmont Funding assigned the note to Everhome on April 13, 2009; Everhome commenced a foreclosure (first action) on April 30, 2009 and the complaint elected to accelerate the full debt.
Title to the property transferred to Equity Recovery Corporation on December 30, 2009; the first action was dismissed without prejudice on October 3, 2013 for Everhome's failure to appear at a conference.
Everhome filed a second foreclosure action June 24–25, 2015; Aber and Equity answered, asserting statute-of-limitations and mortgage-notice defenses and Equity counterclaimed under RPAPL art. 15 to cancel the mortgage.
Equity moved to dismiss the amended complaint as time‑barred (CPLR 3211[a][5]), cancel the notice of pendency, and for summary judgment on its RPAPL counterclaim; Supreme Court granted the motion and cancelled the mortgage; Everhome appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether RPAPL 1304 constitutes a "statutory prohibition" under CPLR 204(a) that tolls the statute of limitations	RPAPL 1304's 90-day notice requirement is a statutory prohibition that tolled limitations	RPAPL 1304 is a condition precedent the plaintiff controls and does not toll CPLR 204(a)	RPAPL 1304 is not a statutory prohibition; it did not toll the limitations period
Whether paragraph 19 of the mortgage bars acceleration until entry of judgment	Acceleration cannot occur until judgment is entered under ¶19	¶19 permits acceleration before reinstatement rights are exercised or extinguished	¶19 does not prohibit pre-judgment acceleration
Whether Everhome validly accelerated the debt in the 2009 complaint (compliance with ¶22(b) 30‑day default/cure notice) and thus whether the 2015 action is time‑barred	Acceleration in 2009 was invalid because plaintiff (or assignor) could not have satisfied the 30‑day notice/cure requirement, so limitations did not run on full debt	Acceleration in the 2009 complaint was effective; Everhome cannot now invalidate its own prior election and the 2015 suit is time‑barred	Majority: plaintiff failed to raise a triable issue that required denial of dismissal; action time‑barred. Dissent: verified pleading and timing raise a question of fact; would deny dismissal
Admissibility / evidentiary effect of Aber's verified affirmative defense in the first action	Aber’s verified answer alleging no receipt of default notice raises a factual issue that defeats the dismissal motion	A bald denial or allegation in Aber’s pleading is insufficient to create a triable issue; plaintiff should produce records showing mailing/delivery	Majority: Aber’s pleading and plaintiff’s lack of evidence do not raise a question of fact. Dissent: the verified answer could be treated as evidentiary and raises a question of fact

Key Cases Cited

Bank of N.Y. Mellon v. Craig, 169 A.D.3d 627 (App. Div.) (acceleration principle and when limitations begin to run)
Bank of N.Y. Mellon v. Dieudonne, 171 A.D.3d 34 (App. Div.) (paragraph 19 permits pre‑judgment acceleration)
Citibank, N.A. v. Conti‑Scheurer, 172 A.D.3d 17 (App. Div.) (strict compliance with RPAPL 1304 is a condition precedent to foreclosure)
Barchet v. New York City Tr. Auth., 20 N.Y.2d 1 (Ct. of Appeals) (distinguishing statutory prohibitions from condition precedents)
Zuckerman v. City of New York, 49 N.Y.2d 557 (Ct. of Appeals) (summary judgment opposition requires admissible evidentiary proof)
Milone v. U.S. Bank N.A., 164 A.D.3d 145 (App. Div.) (question of fact over notice/acceleration can defeat dismissal)
HSBC Bank USA v. Kirschenbaum, 159 A.D.3d 506 (App. Div.) (condition precedent vs. statutory prohibition analysis)