One way out of a mortgage CPLR R. 3215(c)

JBR Constr. Corp. v Staples, 2010 NY Slip Op 02514 (App. Div., 2nd, 2010)

RPAPL 1501(4) provides that "[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired," any person with an estate or interest in the property may maintain an action "to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom" (RPAPL 1501[4]). Here, the plaintiff property owner made a prima facie showing of its entitlement to judgment as a matter of law declaring that the subject mortgage is invalid by establishing that a foreclosure action commenced by the defendant mortgagee in 2001 was dismissed by this Court as abandoned pursuant to CPLR 3215(c) (see Staples v Jeff Hunt Devs., Inc., 56 AD3d 459), and that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see CPLR 213[4]; LePore v Shaheen, 32 AD3d 1330, 1331; Corrado v Petrone, 139 AD2d 483; see also Plaia v Safonte, 45 AD3d 747; Zinker v Makler, 298 AD2d 516). In opposition, the defendant failed to raise a triable issue of fact as to whether the statute of limitations was tolled or revived (see Alvarez v Prospect Hosp., 68 NY2d 320; Rack v Rushefsky, 5 AD3d 753). Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were for summary judgment declaring that the subject mortgage is invalid and directing the County Clerk of Dutchess County [*2]to cancel it (see LePore v Shaheen, 32 AD3d 1330; Corrado v Petrone, 139 AD2d 483).

That branch of the plaintiff's motion which sought cancellation of the notice of pendency filed in connection with the dismissed foreclosure action was not addressed by the Supreme Court. Accordingly, that branch of the plaintiff's motion remains pending and undecided, and the issues raised with respect thereto are not properly before us (see Lend-Mor Mtge. Bankers Corp. v Nicholas, 69 AD3d 680; Fremont Inv. & Loan v Delsol, 65 AD3d 1013, 1015; Zellner v Tarnell, 65 AD3d 1335, 1337; Katz v Katz, 68 AD2d 536, 542-543).

The bold is mine.

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