Argued—December 1, 2020
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Maroulla Michael appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered February 8, 2019. The order and judgment of foreclosure and sale, upon two orders of the same court, both entered May 22, 2018, inter alia, denying that defendants motion for summary judgment dismissing the complaint insofar as asserted against her as time-barred and on her counterclaim for an award of attorneys fees, and granting those branches of the plaintiffs cross motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike her answer, and for an order of reference, and upon an order of the same court, also entered February 8, 2019, granting the plaintiffs motion to confirm the referees report and for a judgment of foreclosure and sale, inter alia, confirmed the referees report and directed the sale of the subject property.
On February 17, 2016, the plaintiff commenced the instant foreclosure action. In her answer, the defendant asserted, as a first affirmative defense, that the action was time-barred. Thereafter, the defendant moved for summary judgment dismissing the complaint insofar as asserted against her as time-barred and on her counterclaim for an award of attorneys fees. The plaintiff cross-moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. By two orders entered May 22, 2018, the Supreme Court, among other things, denied the defendants motion and granted those branches of the plaintiffs cross motion. By order entered February 8, 2019, the court granted the plaintiffs motion to confirm the referees report and for a judgment of foreclosure and sale. By order and judgment of foreclosure and sale, also entered February 8, 2019, the court, inter alia, confirmed the referees report and directed the sale of the subject property. The defendant appeals.
An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). With respect to a mortgage payable in installments, separate causes of action accrue for each installment that is not paid and the statute of limitations begins to run on the date each installment becomes due (see Bank of N.Y. Mellon v. Yacoob, 182 AD3d 566, 567; U.S. Bank N.A. v. Leone, 175 AD3d 1452, 1453). “However, ‘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’ ” (Freedom Mtge. Corp. v. Engel, 163 AD3d 631, 632, lv granted in part 33 NY3d 1039, quoting EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605). “A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action” (HSBC Bank USA, N.A. v. Gold, 171 AD3d 1029, 1030 [internal quotation marks omitted]; see Milone v. U.S. Bank N.A., 164 AD3d 145, 154).
Here, in support of her motion, the defendant established that the six-year statute of limitations (see CPLR 213[4] ) began to run on the entire debt on May 13, 2009, when the plaintiff accelerated the mortgage debt by its commencement of the 2009 foreclosure action (see U.S. Bank N.A. v. Bernice 380 Corp., 186 AD3d 1750, 1752). Since the instant action was commenced on February 17, 2016, more than six years after the mortgage debt was accelerated, the defendant sustained her initial burden of demonstrating, prima facie, that the action was untimely (see id. at 1752; Bank of N.Y. Mellon v. Yacoob, 182 AD3d at 568).
For the same reasons, the plaintiff failed to establish, prima facie, that it timely revoked its election to accelerate the mortgage (see HSBC Bank USA N.A. v. Bhatti, 186 AD3d 817; Soroush v. Citimortgage, Inc., 161 AD3d 1124). Therefore, the Supreme Court should have denied those branches of the plaintiffs cross motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference.
The parties remaining contentions are either without merit or not properly before this Court.
DILLON, J.P., HINDS–RADIX, MILLER and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court