Perkins Coie LLP, New York, NY (Gary F. Eisenberg of
counsel), for appellant.
Law Group, PLLC, Bohemia, NY (Ivan E. Young of counsel), for
C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the plaintiff appeals from so
much of an order of the Supreme Court, Suffolk County (Behar,
J.), dated December 22, 2014, as granted that branch of the
motion of the defendant Theresa A. Tovar, also known as
Theresa Tovar, which was pursuant to CPLR 3211(a)(5) to
dismiss the complaint insofar as asserted against her as
time-barred and to vacate the notice of pendency.
that the order is affirmed insofar as appealed from, with
plaintiff commenced this mortgage foreclosure action in
February 2014. The defendant Theresa A. Tovar, also known as
Theresa Tovar (hereinafter the defendant homeowner), moved,
inter alia, pursuant to CPLR 3211(a)(5) to dismiss the
complaint insofar as asserted against her on the ground that
the six-year statute of limitations had run. In support of
the motion, she submitted, inter alia, the complaint in a
foreclosure action commenced by the plaintiff in October 2007
(hereinafter the 2007 foreclosure action) to foreclose upon
the same mortgage, in which the plaintiff elected to call due
the entire amount secured by the mortgage. The defendant
homeowner also submitted proof that the 2007 foreclosure
action was dismissed as against her in 2010 for failure to
effect personal service. In the order appealed from, the
Supreme Court, inter alia, granted those branches of the
defendant homeowner's motion which were to dismiss the
complaint insofar as asserted against her as time-barred
pursuant to CPLR 3211(a)(5) and CPLR 213(4) and to vacate the
notice of pendency. The plaintiff appeals.
if a mortgage is payable in installments, once a mortgage
debt is accelerated, the entire amount is due and the Statute
of Limitations begins to run on the entire debt"
(EMC Mtge. Corp. v Patella, 279 A.D.2d 604, 605;
see Plaia v Safonte, 45 A.D.3d 747, 748; Koeppel
v Carlandia Corp., 21 A.D.3d 884; Federal Natl.
Mtge. Assn. v Mebane, 208 A.D.2d 892, 894). The filing
of the summons and complaint and notice of pendency in the
2007 action constituted a valid election to accelerate the
maturity of the debt (see Albertina Realty Co. v Rosbro
Realty Corp., 258 NY 472, 476; Fannie Mae v. 133
Mgt., LLC, 126 A.D.3d 670; EMC Mtge. Corp. v
Smith, 18 A.D.3d 602, 603; Clayton Natl. v
Guldi, 307 A.D.2d 982; Arbisser v Gelbelman,
286 A.D.2d 693, 694).
to the plaintiff's contention, the fact that the 2007
action was dismissed as against the defendant homeowner for
failure to effectuate personal service does not invalidate
the plaintiff's election to exercise its right to
accelerate the maturity of debt. "The fact of election
should not be confused with the notice or manifestation of
such election" (Albertina Realty Co. v Rosbro Realty
Corp., 258 NY at 476). Nothing in the parties'
agreement provides that the plaintiff's election is not
valid until the defendant homeowner receives notice thereof.
Consequently, the failure to properly serve the summons and
complaint upon the defendant homeowner did not as a matter of
law destroy the effect of the sworn statement that the
plaintiff had elected to accelerate the maturity of the debt
(see id.; Fannie Mae v 133 Mgt., LLC, 126
A.D.3d 670; City Sts. Realty Corp. v Jan Jay Constr.
Enters. Corp., 88 A.D.2d 558; cf. EMC Mtge. Corp. v
Smith, 18 A.D.3d 602, 603; Arbisser v
Gelbelman, 86 A.D.2d at 694; Hirsch v Badler, 3
plaintiff's reliance on Wells Fargo Bank, N.A. v
Burke (94 A.D.3d 980), is misplaced inasmuch as in that
case, the plaintiff in the prior foreclosure action had not
been assigned the note or mortgage at the time the action was
commenced and therefore was without authority to exercise the
acceleration option in the agreement. Here, there is no
dispute that the plaintiff was authorized to accelerate the
debt when it filed the summons and complaint in 2007.
plaintiff's contention that it revoked its election to
accelerate the mortgage debt in 2012 by voluntarily
discontinuing the action is impropely raised for the first
time on appeal (see Costikyan v Keeffe, 54 A.D.2d
573). Contrary to the plaintiff's contention, this issue
does not involve a question of law that appears on the face
of the record and could not have been avoided if brought to
the attention of the Supreme ...