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. IANNACCI, JJ.
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. v Barken,
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 3211(a)(5) to dismiss this cause of
action with respect to any payment allegedly made by the
plaintiff on or before December 2, 2008, should have been
the unjust enrichment cause of action was timely with respect
to payments allegedly made after December 2, 2008, the
complaint fails to state a cause of action to recover these
payments under a theory of unjust enrichment. "The
elements of unjust enrichment are that the defendants were
enriched, at the plaintiff's expense, and that it is
against equity and good conscience to permit the defendants
to retain what is sought to be recovered" (County of
Nassau v Expedia, Inc., 120 A.D.3d 1178, 1180; see
Old Republic Natl. Tit. Ins. Co. v Luft, 52 A.D.3d 491,
491-492). "The essence of unjust enrichment is that one
party has received money or a benefit at the expense of
another" (City of Syracuse v R.A.C. Holding,
258 A.D.2d 905, 906). However, "the voluntary payment
doctrine... bars recovery of payments voluntarily made with
full knowledge of the facts, and in the absence of fraud or
mistake of material fact or law" (Dillon v U-A
Columbia Cablevision of Westchester, 100 N.Y.2d 525,
526; see Gimbel Bros. v Brook Shopping Ctrs., Inc.,
118 A.D.2d 532, 535-536). Here, no fraud or mistake is
alleged. Instead, the complaint alleges that the plaintiff
advanced funds for the real property taxes "to maintain
its first lien position" and for the hazard insurance
"to protect the property." These allegations
portray the payments as a voluntary, calculated risk to
protect the plaintiff's interest in the property while it
continued to litigate the validity of the mortgage, rather
than the product of mistake or fraud (cf. Wolf v National
Council of Young Israel, 264 A.D.2d 416, 417-418.
Accordingly, that branch of the defendants' motion which
was pursuant to CPLR 3211(a)(7) to dismiss the cause of
action sounding in unjust enrichment for payments for real
property taxes and insurance allegedly made after December 2,
2008, should have been granted.
the circumstances of this case, the defendants are also
entitled to ...