2018 NY Slip Op 01172
N.Y. App. Div. 1st
2018

Nationstar Mortgage LLC, Respondent, v Badrul Islam et al., Defendants, and NY Prime Holding LLC, Appellant.

Appellate Division, First Department, New York

February 20, 2018

2018 NY Slip Op 01172 [158 AD3d 553]

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 28, 2018

Steven Zalewski & Associates, Kew Gardens (Dustin Bowman of counsel), for appellant.

Sandelands Eyet LLP, New York (Jamie N. Burke of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about December 12, 2016, which denied defendant NY Prime Holding LLC‘s pre-answer motion to dismiss the complaint as untimely, unanimously affirmed, with costs.

Defendant never met its initial burden to show that plaintiff‘s action is untimely. Plaintiff‘s predecessor-in-interest accelerated the mortgage and note for the property by commencing a foreclosure action on October 29, 2009, which was subsequently dismissed without prejudice. The applicable six-year limitations period commenced upon filing of the 2009 action (see CDR Créances S.A. v Euro-American Lodging Corp., 43 AD3d 45, 51 [1st Dept 2007]).

The instant action was commenced with the filing of a complaint on October 29, 2015, which, excluding the day upon which the prior action was commenced (see General Construction Law § 20; Turner v City of New York, 94 AD3d 635, 636 [1st Dept 2012]; Tismer v New York Edison Co., 228 NY 156, 163-164 [1920]) was within the applicable six-year statute of limitations (CPLR 213 [4]). Concur—Renwick, J.P., Richter, Manzanet-Daniels, Andrias, Gesmer, JJ.