Everhome Mtge. Co. v Aber

Nov 17, 2022

2022 NYSlipOp 06540

Versions:

Everhome Mortgage Company, as Nominee for Bank One, N.A., Appellant,
v
Nuchem Aber et al., Respondents, et al., Defendants.

Argued October 19, 2022; decided November 17, 2022

Everhome Mtge. Co. v Aber, 195 AD3d 682, affirmed.

APPEARANCES OF COUNSEL

McGlinchey Stafford, New York City (Mikelle V. Bliss and Margaret J. Cascino of counsel), for appellant.

Rosenberg Fortuna & Laitman, LLP, Garden City (Anthony R. Filosa of counsel), Villanti Law Group PLLC, Brooklyn (Christopher Villanti of counsel), and Menashe & Lapa LLP, Suffern (David Lapa of counsel), for respondents.

OPINION OF THE COURT

Memorandum.

The Appellate Division order should be affirmed, with costs.

In this foreclosure action, defendant Equity Recovery Corporation (Equity) established that the statute of limitations began to run on April 30, 2009, when plaintiff commenced the first action to foreclose the mortgage (see Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476 [1932]; Freedom Mtge. Corp. v Engel, 37 NY3d 1, 22-23 [2021]). That first action was dismissed without prejudice based on plaintiff‘s failure to appear for a court conference. Plaintiff did not commence this second foreclosure action until June 24, 2015, more than six years after acceleration of the debt (see CPLR 213 [4]). We agree with the Appellate Division that plaintiff failed to raise an issue of fact in opposition to Equity‘s motion for, among other things, dismissal of the amended complaint as time-barred and for summary judgment on its counterclaim pursuant to RPAPL article 15 (195 AD3d 682, 689 [2d Dept 2021]).

Acting Chief Judge Cannataro and Judges Rivera, Garcia, Wilson, Singas and Troutman concur.

Order affirmed, with costs, in a memorandum.