Richard A. Rosenzweig, Esq., P.C., Staten Island, NY, for
C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, HECTOR D.
DECISION & ORDER
action pursuant to RPAPL 1501(4) to cancel and discharge of
record a mortgage, the plaintiff appeals from an order of the
Supreme Court, Kings County (Partnow, J.), dated October 18,
2016, which denied its unopposed motion pursuant to CPLR 3215
for leave to enter a judgment against the defendant canceling
and discharging that mortgage, upon the defendant's
failure to appear or answer.
that the order is reversed, on the law, with costs, the
plaintiffs' unopposed motion pursuant to CPLR 3215 for
leave to enter a judgment against the defendant canceling and
discharging of record the subject mortgage, upon the
defendant's failure to appear or answer, is granted, and
the matter is remitted to the Supreme Court, Kings County,
for the entry of a judgment canceling and discharging of
record the subject mortgage.
prior owners of real property in Brooklyn obtained a loan
from the defendant's predecessor-in-interest which was
secured by a mortgage on that property. The mortgage was
recorded on April 9, 2007. When the prior owners failed to
make payments in accordance with the terms of the mortgage
note, the defendant's predecessor-in-interest commenced
an action in January 2008 to foreclose that mortgage. The
mortgage foreclosure action was eventually dismissed pursuant
to CPLR 3216 due to the failure to prosecute that action, and
the motion to vacate the dismissal was thereafter denied.
Subsequently, title to the subject property was transferred
to the plaintiff.
2016, the plaintiff commenced this action pursuant to RPAPL
1501(4) to cancel and discharge of record the subject
mortgage held by the defendant. The plaintiff alleged that
the mortgage was unenforceable since the debt secured by the
mortgage had been accelerated in 2008, so that the period of
time in which to commence an action to foreclose the mortgage
had expired. The defendant did not appear in the action or
answer the complaint.
plaintiff moved pursuant to CPLR 3215 for leave to enter a
judgment against the defendant canceling and discharging of
record the mortgage, upon the defendant's failure to
appear or answer. The defendant did not oppose the motion.
The Supreme Court denied the plaintiff's motion. The
Supreme Court improperly denied the plaintiff's unopposed
motion pursuant to CPLR 3215. "An applicant for a
default judgment against a defendant must submit proof of
service of the summons and complaint, proof of the facts
constituting the claim, and proof of the defaulting
defendant's failure to answer or appear" (US
Bank, N.A. v Razon, 115 A.D.3d 739, 740; see
CPLR 3215[f]; HSBC Bank USA v Clayton, 146 A.D.3d
942, 944; Citimortgage, Inc. v Chow Ming Tung, 126
A.D.3d 841, 843). Here, the plaintiff satisfied these
requirements (see U.S. Bank, N.A. v Razon, 115
A.D.3d at 740). In support of its motion, the plaintiff
submitted a copy of the affidavit of service indicating that
the defendant had been served with process (see CPLR
with respect to an action pursuant to RPAPL 1501(4), a person
having an estate or an interest in real property subject to a
mortgage can seek to cancel and discharge that encumbrance
where the period allowed by the applicable statute of
limitations for the commencement of an action to foreclose
the mortgage had expired, provided that the mortgagee or its
successor was not in possession of the subject real property
at the time the action to cancel and discharged the mortgage
was commenced (see RPAPL 1501; Kashipour v
Wilmington Sav. Fund Socy., FSB, 144 A.D.3d 985, 986).
An action to foreclose a mortgage has a six-year statute of
limitations (see CPLR 213; Wells Fargo Bank,
N.A. v Eitani, 148 A.D.3d 193, 197; Kashipour v
Wilmington Sav. Fund Socy., FSB, 144 A.D.3d at 986;
Wells Fargo Bank, N.A. v Burke, 94 A.D.3d 980, 982;
Clayton Natl. v Guldi, 307 A.D.2d 982). "The
law is well settled that, even 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 Beneficial Homeowner Serv. Corp.
v Tovar, 150 A.D.3d 657, 658).
the plaintiff submitted a copy of the summons and complaint
filed in the mortgage foreclosure action commenced by the
defendant's predecessor-in-interest and the order
dismissing that action pursuant to CPLR 3216 which
demonstrated that the mortgage was accelerated in 2008 more
than six years before the commencement of this action and
that there was no longer a pending mortgage foreclosure
action (see Kashipour v Wilmington Sav. Fund Socy.,
FSB, 144 A.D.3d at 986). In addition, the summons and
the complaint, along with the subject mortgage documents,
submitted by the plaintiff on its motion, demonstrated that
the defendant's predecessor-in-interest had standing to
commence the mortgage foreclosure action (cf. Wells Fargo
Bank N.A. v Burke, 94 A.D.3d at 983).
the plaintiff demonstrated that the applicable statute of
limitations had expired even if the limitations period was
calculated from November 21, 2008, the date by which the
Federal Deposit Insurance Corporation was appointed as
receiver for the defendant's predecessor-in-interest
(see 12 USC § 1821[d][A][i][I], [II],
contrary to the Supreme Court's determination, whether
the mortgage foreclosure action was dismissed on the merits
is not relevant to the determination of the plaintiff's
motion in this action (see Kashipour v Wilmington Sav.
Fund Socy., FSB, 144 A.D.3d at 987; see also JBR
Constr. Corp. v Staples, 71 A.D.3d 952, 953).
light of our determination, we need not reach the
plaintiff's remaining contention.
the Supreme Court should have granted the plaintiff's
unopposed motion for leave to enter a judgment against the
defendant canceling ...