- September 11, 2017
DeSocio & Fuccio, P.C., Oyster Bay, NY (James B. Fuccio
of counsel) for appellants.
& Allison, APC, New York, NY (Gary N. Smith of counsel),
C. DILLON, J.P. BETSY BARROS FRANCESCA E. CONNOLLY ANGELA G.
DECISION & ORDER
action, inter alia, for a judgment declaring that the
plaintiff has an equitable mortgage upon certain real
property, the defendants William P. Burke, Jr., and Susan C.
Burke appeal, as limited by their brief, from so much of an
order of the Supreme Court, Nassau County (Brown, J.),
entered June 2, 2015, as denied those branches of their
motion which were pursuant to CPLR 3211(a)(5) and (7) to
dismiss the complaint insofar as asserted against them, and
to cancel the notice of pendency dated September 2, 2014,
filed against the subject property.
that the order is reversed insofar as appealed from, on the
law, with costs, and those branches of the motion of the
defendants William P. Burke, Jr., and Susan C. Burke which
were pursuant to CPLR 3211(a)(5) and (7) to dismiss the
complaint insofar as asserted against them and to cancel the
notice of pendency are granted; and it is further, ORDERED
that the Nassau County Clerk is directed to cancel the notice
of pendency dated September 2, 2014.
16, 1997, the defendants William P. Burke, Jr., and Susan C.
Burke (hereinafter together the defendants) executed a note
in the sum of $370, 000 in favor of Delta Funding Corporation
(hereinafter Delta), which was secured by a mortgage on
residential real property located in Nassau County. The
proceeds of the loan allegedly were used to pay off existing
liens against the property totaling $350, 633.07, which
payments were made at the time of closing.
defendants allegedly defaulted on the payment due on April
20, 1998. Thereafter, in 1999, 2005, and 2011, Delta's
successors-in-interest to the note and mortgage commenced
three separate actions to foreclose the mortgage. The 1999
action was dismissed pursuant to CPLR 3216 for failure to
prosecute, and the 2005 action was abandoned. The 2011 action
was brought by the plaintiff Wells Fargo Bank, N.A.,
successor by merger to Wells Fargo Bank Minnesota, N.A., as
trustee formerly known as Norwest Bank Minnesota, N.A., as
trustee for Delta Home Equity Loan Trust 1997-3. By order
dated May 14, 2012, the Supreme Court granted the
defendants' motion to dismiss the 2011 action as
time-barred and declared the mortgage null and void.
December 2, 2014, the plaintiff commenced this action (1) for
a judgment declaring, under the doctrine of equitable
mortgage, that the 1997 mortgage agreement constituted a
valid and binding lien upon the property or, in the
alternative, for a judgment declaring, under the doctrine of
equitable subrogation, that the plaintiff had an equitable
lien on the property of not less than $350, 633.07, the
amount of all liens extinguished at the time of closing, and
(2) to recover a money judgment, pursuant to a theory of
unjust enrichment, for not less than $187, 354.94,
representing the amount of real property taxes and hazard
insurance premiums for the subject property paid by the
plaintiff from June 1998 to the present. In connection with
the commencement of the action, the plaintiff filed a notice
of pendency dated September 2, 2014, against the property.
defendants moved, inter alia, pursuant to CPLR 3211(a)(5) and
(7) to dismiss the complaint insofar as asserted against
them, and to cancel the notice of pendency filed against the
property. The defendants argued that the complaint was barred
by the six-year statute of limitations and, in any event,
failed to state a cause of action to recover under theories
of equitable mortgage, equitable subrogation, or unjust
enrichment, and was barred by the doctrine of res judicata.
With respect to the unjust enrichment cause of action, the
defendants argued that the payments by the plaintiff for real
property taxes and hazard insurance were unrecoverable since
they constituted voluntary and gratuitous payments made by
the plaintiff. The Supreme Court denied the defendants'
motion. We reverse.
motion to dismiss a cause of action pursuant to CPLR
3211(a)(5) on the ground that it is barred by the statute of
limitations, a defendant bears the initial burden of
establishing, prima facie, that the time in which to sue has
expired (see Bill Kolb, Jr., Subaru, Inc. v LJ
Rabinowitz, CPA, 117 A.D.3d 978, 979; Kennedy v H.
Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 1017). Once
this showing has been made, the burden shifts to the
plaintiff to "aver evidentiary facts establishing that
the action was timely or to raise an issue of fact as to
whether the action was timely" (Lessoff v 26 Ct. St.
Assoc., LLC, 58 A.D.3d 610, 611; see Lake v New York
Hosp. Med. Ctr. of Queens, 119 A.D.3d 843, 844).
"The plaintiff has the burden of establishing that the
statute of limitations has not expired, that it is tolled, or
that an exception to the statute of limitations applies"
(Lake v New York Hosp. Med. Ctr. of Queens, 119
A.D.3d at 844; see Marrero v Sosinsky, 130 A.D.3d
883, 883; Peykarian v Yin Chu Chien, 109 A.D.3d 806,
the defendants established, prima facie, that the causes of
action seeking declarations that the plaintiff had a mortgage
on the property under the doctrines of equitable mortgage and
equitable subrogation were barred by the six-year statute of
limitations. "In order to determine the Statute of
Limitations applicable to a particular declaratory judgment
action, the court must 'examine the substance of that
action to identify the relationship out of which the claim
arises and the relief sought'" (Matter of Save
the Pine Bush v City of Albany, 70 N.Y.2d 193, 202,
quoting Solnick v Whalen, 49 N.Y.2d 224, 229).
"If the court determines that the underlying dispute can
be or could have been resolved through a form of action or
proceeding for which a specific limitation period is
statutorily provided, that limitation period governs the
declaratory judgment action" (Matter of Save the
Pine Bush v City of Albany, 70 N.Y.2d at 202). A cause
of action seeking to establish a lien pursuant to the
doctrine of equitable mortgage or the doctrine of equitable
subrogation is governed by a six-year statute of limitations
(see CPLR 213; US Bank N.A. v Gestetner, 103
A.D.3d 962, 963; see also Roslyn Union Free Sch. Dist.
vBarken, 16 N.Y.3d 643, 650). Those causes of action
accrued no later than June 16, 1997, when the mortgage and
note were made (see Ponnambalam v Sivaprakasapillai,
35 A.D.3d 571, 574) and, therefore, those causes of action,
commenced in 2014, are untimely. In opposition to the
defendants' motion, the plaintiff failed to demonstrate
the existence of an issue of fact as to whether the relevant
statutes of limitation were tolled or were otherwise
inapplicable (see Keles v Hultin, 144 A.D.3d 988,
989). Accordingly, those branches of the defendants'
motion which were pursuant to CPLR 3211(a)(5) to dismiss the
causes of action seeking declarations that the plaintiff had
a mortgage on the property under the doctrines of equitable
mortgage and equitable subrogation should have been granted.
defendants also established, prima facie, that the unjust
enrichment cause of action to recover money allegedly paid by
the plaintiff for real property taxes and hazard insurance
was time-barred with respect to any payment made by the
plaintiff on or before December 2, 2008, six years prior to
the commencement of this action (see Williams-Guillaume v
Bank of Am., N.A.,130 A.D.3d 1016, 1017). In
opposition, the plaintiff failed to raise an issue of fact
(see Keles v Hultin, 144 A.D.3d at 989).
Accordingly, that branch of the defendants' motion which
was pursuant to CPLR ...