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Wells Fargo Bank, N.A. v. Burke

Supreme Court of New York, Second Department

November 1, 2017

Wells Fargo Bank, N.A., etc., respondent,
v.
William P. Burke, Jr., et al., appellants, et al., defendants. (Index No. 11601/14)

          Argued - September 11, 2017

         D53731 O/htr

          DeSocio & Fuccio, P.C., Oyster Bay, NY (James B. Fuccio of counsel) for appellants.

          Houser & Allison, APC, New York, NY (Gary N. Smith of counsel), for respondent.

          MARK C. DILLON, J.P. BETSY BARROS FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ.

          DECISION & ORDER

         In an 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.

         ORDERED 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.

         On June 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.

         The 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.

         On 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.

         The 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.

         On a 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, 807).

         Here, 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[1]; 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.

         The 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 ...


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