Adam Leitman Bailey, P.C. Defeats Fatal Statute of Limitations Bar to Foreclose for Plaintiff Note Holder
VW Bedstuy LLC, Plaintiff,
Juan Tavares, Defendant
Upon the foregoing papers Defendant, Juan Taveras (“Taveras”), moves this Court for an Order pursuant to RPAPL 1501(4) quieting title of the subject property, 603 Knickerbocker Avenue, Brooklyn (Block 3362, Lot 129) and dismissing Plaintiff’s complaint pursuant to CPLR 3211 (a)(5). In a separate motion Plaintiff, VW Bedstuy LLC (“Bedstuy”) moved to renew and reargue their prior motion for summary judgment pursuant to CPLR 2221 and CPLR 3212.
Taveras executed a note and mortgage in favor of First United Mortgage Banking Corp. (“First UNited”) on September 13, 2006 in the amount of $514,400. This mortgage has been the subject of two prior foreclosure actions. The first action was brought originally by First United on or about September 17, 2007 under Index #34933. Sometime thereafter First United assigned the aforementioned mortgage to DLJ Mortgage Capital (“DLJ”) and the caption of the action under Index #34933/2007 was changed to reflect DLJ, as Plaintiff instead of First United. By order dated May 24, 2011, Hon. Debra Silber, dismissed the DLJ action with prejudice based upon defects in the assignment to DLJ and improper service on Taveras.
Thereafter, DLJ assigned the mortgage to Beltway Capital, LLC (“Beltway”) on February 1, 2011 and on February 3, 2011 it was assigned again to Bedstuy. Bedstuy commenced the second action on this same mortgage under Index # 10560/13 on or about May 30, 2013. By order dated April 27, 2015, Hon. Larry Marting determined that although Judge Silber had dismissed the prior action with prejudice, any defects in the DLJ assignment were not dispositive on the issue standing, as the mortgage passes as an incident to the note. Bank of Silverberg, 86 AD3d 274, 280 (2nd Dpet 2011). Judge Martin found that Bedstuy produced sufficient proof that it was in possession of the note at the time the action under Index #10560/13 was commenced. However, Judge Martin dismissed that action based upon Bedstuy’s failure to submit sufficient proof that it complied with RPAPL 1304 and 1306.
Judge Martin’s order dismissing the action brought under Index #10560/13 was dated April 27, 2015 and Plaintiff commenced the instant action on September 24, 2015, less than six months later. Issue was joined when Taveras served his answer containing affirmative defenses on or about November 2, 2015. Defedant moved to dismiss the complaint based upon Plaintiff’s failure to comply with RPAPL 1304 and 1306. By order dated May 8, 2016 this Court found that Bedstuy submitted sufficient proof that the notices required by RPAPL 1304 and 1306 were sent in compliance with the statue. Defendant also moves to dismiss the instant action based upon a state of limitations defense. The instant action is governed by the six year statue of limitations as set forth in CPLR 213 (1) which expired on June 1, 2013. JP Morgan Chase Bank v Mbanefo, 123 AD3d 669, 671 (2nd Dept 2014). The prior action dismissed by Judge Martin was commenced timely on May 30, 2013. Plaintiff contends that the tolling provisions of CPLR 205 (a) are applicable in the case at bar. CPLR 205 (a) additionally requires that the service upon the defendant be effectuated within six months of the terminated action. Quinones v Neighborhood Youth and Family Services, Inc, 71 AD3d 1106 (2nd Dept 2010); Kaps-All Packaging Systems, supra at 738; First Central Savings Bank v Meridian Residential Capital, 35 Misc3d 1206 (A) (S Ct, Nassau County, 2012) . Service upon Tavares was effectuated within six months of the prior action’s discontinuance, on or about October 14, 2015, thereby tolling the six year statue of limitations pursuant to CPLR 205 (a). Accordingly, contrary to Defendant’s contention, the instant action was commenced timely pursuant to CPLR 205 (a).
Accordingly, Defendant’s motion to dismiss the complaint is denied in its entirety and Plaintiff’s Order of Reference is signed.
This is the Decision and Order of the Court.