- November 6, 2017
& Associates, P.C., Garden City, NY (Peter K. Kamran of
counsel), for appellant.
Hinshaw & Cullbertson LLP, New York, NY (Schuyler B.
Kraus and Joseph G. Silver of counsel), for respondent.
S. ROMAN, J.P. JOSEPH J. MALTESE HECTOR D. LASALLE BETSY
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, Suffolk County (Joseph Farneti, J.), dated
August 17, 2015, which granted the defendant's motion
pursuant to CPLR 3211(a)(7) to dismiss the complaint.
that the order is affirmed, with costs.
2005, the plaintiff obtained a loan from American Home
Mortgage Acceptance, Inc. (hereinafter AHMA), which was
secured by a mortgage on his real property in Southampton,
Suffolk County. The plaintiff defaulted on his mortgage
payments, and on June 11, 2007, AHMA commenced an action to
foreclose the mortgage. AHMA's action was subsequently
dismissed as abandoned pursuant to CPLR 3215(c). In May 2011,
the mortgage and debt were transferred by assignment of
mortgage to the defendant, U.S. Bank National Association
(hereinafter U.S. Bank), which commenced a second foreclosure
action on June 9, 2011. The second action was dismissed in
October 2014 for lack of personal jurisdiction.
November 2014, the plaintiff commenced this action pursuant
to RPAPL 1501(4) to cancel and discharge of record the
subject mortgage. The complaint alleged that enforcement of
the mortgage was barred by the applicable six-year statute of
limitations (see CPLR 213), which began to run on
June 11, 2007, when AHMA accelerated the debt by commencing
the first action to foreclose the mortgage. U.S. Bank moved
pursuant to CPLR 3211(a)(7) to dismiss the complaint for
failure to state a cause of action, contending that the
plaintiff had filed a petition in bankruptcy shortly after
the commencement of each foreclosure action, activating
automatic stays which tolled the running of the statute of
limitations pursuant to CPLR 204(a). In the order appealed
from, the Supreme Court granted the motion. We affirm.
considering a motion to dismiss a complaint pursuant to CPLR
3211(a)(7), the court must accept the facts as alleged in the
complaint as true, accord the plaintiff the benefit of every
possible favorable inference, and determine only whether the
facts as alleged fit within any cognizable legal
theory'' (Wells Fargo Bank N.A. v E & G Dev.
Corp., 138 A.D.3d 986, 986; see Leon v
Martinez, 84 N.Y.2d 83, 88). A court may consider
evidentiary material submitted by a defendant in support of a
motion to dismiss pursuant to CPLR 3211(a)(7) (see CPLR
3211[c]; Wells Fargo Bank N.A. v E & G Dev.
Corp., 138 A.D.3d at 986). "Where evidentiary
material is submitted and considered on a motion to dismiss a
complaint pursuant to CPLR 3211(a)(7), and the motion is not
converted into one for summary judgment, the question becomes
whether the plaintiff has a cause of action, not whether the
plaintiff has stated one, and unless it has been shown that a
material fact as claimed by the plaintiff to be one is not a
fact at all and unless it can be said that no significant
dispute exists regarding it, dismissal should not
eventuate' (Christ the Rock World Restoration Church
Intl., Inc. v Evangelical Christian Credit Union, 153
A.D.3d 1226, 1229 [internal quotation marks omitted]; see
Guggenheimer v Ginzburg, 43 N.Y.2d 268, 274-275).
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
discharge the mortgage was commenced (see RPAPL
1501; 53 PL Realty, LLC v U.S. Bank N.A., 153
A.D.3d 894; 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). "[E]ven 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" (EMCMtge. Corp. v Patella, 279
A.D.2d 604, 605; see 53 PL Realty, LLC v. U.S. Bank
N.A., 153 A.D.3d 894; NMNT Realty Corp. v Knoxville
2012 Trust, 151 A.D.3d 1068, 1069; Nationstar Mtge.,
LLC v Weisblum, 143 A.D.3d 866, 867).
362 of the 1978 Bankruptcy Code (11 USC) provides that the
filing of a petition in bankruptcy "operates as a stay,
applicable to all entities, of. . . the commencement or
continuation . . . of a judicial, administrative, or other
action or proceeding against the debtor that was or could
have been commenced before the commencement of the case under
this title" (11 USC § 362[a]). The filing of a
petition for protection under the Bankruptcy Code imposes
"an automatic stay of any mortgage foreclosure
actions" (Mercury Capital Corp. v Shepherds
Beach, 281 A.D.2d 604, 605; see 11 USC §
362[a]; Zuckerman v 234-6 W. 22 St. Corp., 267
A.D.2d 130). CPLR 204(a) provides that "[w]here the
commencement of an action has been stayed... by statutory
prohibition, the duration of the stay is not a part of the
time within which the action must be commenced.''
Pursuant to CPLR 204(a), the Bankruptcy Code's automatic
stay tolls the limitations period for foreclosure actions
(see PSP-NC, LLC v Raudkivi, 138 A.D.3d 709, 711;
Zuckerman v. 234-6 W. 22 St. Corp., 267 A.D.2d 130).
in support of its motion to dismiss pursuant to CPLR
3211(a)(7), U.S. Bank submitted copies of the plaintiffs
petitions filed in the Bankruptcy Court, together with copies
of the orders dismissing the first bankruptcy proceeding and
releasing the subject property from the bankruptcy estate in
the second bankruptcy proceeding, thereby establishing that,
pursuant to CPLR 204(a), the statute of limitations had been
tolled for over 4% years. Therefore, U.S. Bank's right to
commence a foreclosure action in this matter was extended
until December 2017. By showing that a material fact as
claimed by the plaintiff was not a fact at all, U.S. Bank
established its entitlement to dismissal of the action
pursuant to CPLR 3211(a)(7) (see Guggenheimer v.
Ginzburg, 43 N.Y.2d at 275).
plaintiffs contention that CPLR 204(a) does not apply here
because the earlier foreclosure actions had already been
commenced when the petitions in bankruptcy were filed is
without merit (see ML ...