166 A.D.3d 742
Supreme Court, Appellate Division, Second Department, New York.
JP MORGAN CHASE BANK, N.A., etc., Respondent,
v.
Joseph MBANEFO, Appellant.
2016–12356
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(Index No. 2441/15)
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Argued—May 14, 2018
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November 14, 2018
Synopsis
Background: Mortgagee’s successor commenced breach of contract action seeking specific performance based upon the mortgagor’s alleged breach of a modification agreement between the parties. The Supreme Court, Suffolk County, Asher, J., granted mortgagee’s motion to preliminarily enjoin the defendant from transferring or encumbering the subject property and denied mortgagor’s motion to dismiss complaint as time barred. Mortgagor appealed.
 
[Holding:] The Supreme Court, Appellate Division, held that mortgagee’s cause of action accrued, and six-year limitations period began to run, when mortgagor did not re-execute the mortgage ten days after receipt of lender’s request.
 
Affirmed.
 
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction; Motion to Dismiss for Failure to State a Claim.

West Headnotes (5)

[1]
	Pretrial ProcedureConstruction of pleadings
Pretrial ProcedurePresumptions and burden of proof
	
	In resolving a motion to dismiss based on a claim being barred by a statute of limitations, the court must accept the facts as alleged in the complaint as true, and accord the plaintiff the benefit of every possible favorable inference. N.Y. CPLR § 3211(a)(5).
3 Cases that cite this headnote

[2]
	Limitation of ActionsBurden of proof in general
	
	On a motion to dismiss a cause of action 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. N.Y. CPLR § 3211(a)(5).
3 Cases that cite this headnote

[3]
	Limitation of ActionsBurden of proof in general
	
	On a motion to dismiss on the ground that an action is barred by the statute of limitations, once showing that the time in which to sue has expired has been made, the burden shifts to the plaintiff to aver evidentiary facts establishing that the action was timely or to raise a question of fact as to whether the action was timely.
3 Cases that cite this headnote

[4]
	Limitation of ActionsBreach of contract in general
	
	A cause of action alleging breach of contract accrues at the time of the alleged breach. N.Y. CPLR § 213(2).

[5]
	Limitation of ActionsBreach of contract in general
	
	Cause of action for breach of contract seeking specific enforcement accrued, and six-year limitations period began to run, when mortgagor did not re-execute the mortgage ten days after lender requested, thereby breaching a modification agreement. N.Y. CPLR § 213(2).

Attorneys and Law Firms
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant.
Butler, Fitzgerald, Fiveson & McCarthy, P.C., New York, N.Y. (David K. Fiveson and Mark J. Krueger of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER
*742 In an action for specific performance, the defendant appeals from an order of the Supreme Court, Suffolk County (W. Gerard Asher, J.), dated October 14, 2016. The order, insofar as appealed from, granted the plaintiff’s motion to preliminarily **421 enjoin the defendant from transferring or encumbering the subject property pending final disposition of the action, and denied that branch of the defendant’s motion pursuant to CPLR 3211(a)(5) which was to dismiss the complaint as time-barred.
 
ORDERED that the order is affirmed insofar as appealed from, with costs.
 
On October 19, 2005, the defendant executed and delivered to the plaintiff’s predecessor-in-interest a mortgage against the defendant’s property in Melville, securing a loan in the amount of $1.5 million. The mortgage was never recorded. In addition, the original mortgage was lost or destroyed, and an attempt by the plaintiff to record a copy of the mortgage was rejected by the Suffolk County Clerk because of certain defects on the face of the mortgage. The plaintiff commenced an earlier action, in effect, to compel the Suffolk County Clerk to accept for recording a copy of the mortgage, and that action was ultimately dismissed on appeal to this Court for failure to state a cause of action (see JP Morgan Chase Bank, N.A. v. Mbanefo, 123 A.D.3d 669, 670, 998 N.Y.S.2d 415).
 
Thereafter, the plaintiff commenced this action seeking specific performance based upon the defendant’s alleged breach of a 2011 modification agreement between the parties. Pursuant to that agreement, the defendant agreed to execute, within 10 days of a demand by the plaintiff, any documentation necessary to enable the mortgage to be recorded. The plaintiff moved to preliminarily enjoin the defendant from transferring or encumbering the property pending final disposition of the action. The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, among other things, as time-barred. The Supreme Court, inter alia, granted the plaintiff’s motion *743 and denied the subject branch of the defendant’s motion. The defendant appeals.
 
[1] [2] [3]“In resolving a motion to dismiss pursuant to CPLR 3211(a)(5), the court must accept the facts as alleged in the complaint as true, and accord the plaintiff the benefit of every possible favorable inference” (U.S. Bank N.A. v. Gordon, 158 A.D.3d 832, 834, 72 N.Y.S.3d 156; see Faison v. Lewis, 25 N.Y.3d 220, 224, 10 N.Y.S.3d 185, 32 N.E.3d 400; Ford v. Phillips, 121 A.D.3d 1232, 1234, 994 N.Y.S.2d 688; see also Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). “On a 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” (Wells Fargo Bank, N.A. v. Burke, 155 A.D.3d 668, 669, 64 N.Y.S.3d 228; see Bill Kolb, Jr., Subaru, Inc. v. LJ Rabinowitz, CPA, 117 A.D.3d 978, 979, 986 N.Y.S.2d 523; Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 1017, 912 N.Y.S.2d 590). 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 a question of fact as to whether the action was timely (see Wells Fargo Bank, N.A. v. Burke, 155 A.D.3d at 669–670, 64 N.Y.S.3d 228; Lake v. New York Hosp. Med. Ctr. of Queens, 119 A.D.3d 843, 844, 989 N.Y.S.2d 365; Lessoff v. 26 Ct. St. Assoc., LLC, 58 A.D.3d 610, 611, 872 N.Y.S.2d 144). “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” (Wells Fargo Bank, N.A. v. Burke, 155 A.D.3d at 670, 64 N.Y.S.3d 228 [internal quotation marks omitted]; see Marrero v. Sosinsky, 130 A.D.3d 883, 12 N.Y.S.3d 891; **422 Lake v. New York Hosp. Med. Ctr. of Queens, 119 A.D.3d at 844, 989 N.Y.S.2d 365; Peykarian v. Yin Chu Chien, 109 A.D.3d 806, 807, 971 N.Y.S.2d 152).
 
[4]The complaint asserts one substantive cause of action, which alleges breach of contract, and seeks specific performance of the modification agreement. A cause of action for specific performance of a contract is governed by the six-year statute of limitations set forth in CPLR 213(2) (see Feldman v. Teitelbaum, 160 A.D.2d 832, 833, 554 N.Y.S.2d 265; Lituchy v. Guinan Lithographic Co., 60 A.D.2d 622, 400 N.Y.S.2d 158). “A cause of action ... [alleging] breach of contract accrues ... at the time of the alleged breach” (Affordable Hous. Assoc., Inc. v. Town of Brookhaven, 150 A.D.3d 800, 802, 54 N.Y.S.3d 122 [internal quotation marks omitted]; see Meadowbrook Farms Homeowners Assn., Inc. v. JZG Resources, Inc., 105 A.D.3d 820, 822, 963 N.Y.S.2d 300; Westchester County Correction Officers Benevolent Assn., Inc. v. County of Westchester, 65 A.D.3d 1226, 1228, 885 N.Y.S.2d 728).
 
[5]The complaint alleges that the plaintiff sent a written demand to the defendant on January 23, 2015, that he re-execute *744 the mortgage pursuant to the modification agreement, which requires that, “within ten (10) days after [his] receipt of the Lender’s request,” the defendant “execute, acknowledge, initial, and deliver to the Lender any documentation the Lender deems necessary to replace or correct the lost, misplaced, misstated or inaccurate document(s).” It is undisputed that the defendant did not re-execute the mortgage, thereby breaching the modification agreement. Based upon the allegations of the complaint and the documents submitted in support of the defendant’s motion, the action alleging breach of contract accrued on February 7, 2015, the date the defendant was required to perform and failed to do so. Since the instant action was commenced on or about February 10, 2015, three days after the alleged breach, the defendant failed to satisfy his initial burden of establishing, prima facie, that the six year limitations period had expired (see Wells Fargo Bank, N.A. v. Burke, 155 A.D.3d at 669, 64 N.Y.S.3d 228; Bill Kolb, Jr., Subaru, Inc. v. LJ Rabinowitz, CPA, 117 A.D.3d at 979, 986 N.Y.S.2d 523; Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d at 1017, 912 N.Y.S.2d 590).
 
The defendant’s remaining contentions are without merit.
 
BALKIN, J.P., AUSTIN, HINDS–RADIX and CONNOLLY, JJ., concur.
All Citations
166 A.D.3d 742, 88 N.Y.S.3d 420, 2018 N.Y. Slip Op. 07709
End of Document
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