186 A.D.3d 768
Supreme Court, Appellate Division, Second Department, New York.
R.J.T. FOOD AND RESTAURANT, LLC, et al., Respondents,
v.
RESCAP LIQUIDATING TRUST, etc., Appellant, et al., Defendants.
2018–11574
|
(Index No. 615307/16)
|
Argued—January 2, 2020
|
August 19, 2020
Attorneys and Law Firms
Houser & Allison, APC, New York, N.Y. (Jordan W. Schur of counsel), for appellant.
Butler, Fitzgerald, Fiveson & McCarthy, A Professional Corporation, New York, N.Y. (David K. Fiveson and Claudia G. Jaffe of counsel), for respondents.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER
*768 In an action pursuant to RPAPL 1501(4) to cancel and discharge of record certain mortgages, the defendant ResCap Liquidating Trust appeals from an order of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated September 17, 2018. The order granted the plaintiffs’ motion for summary judgment on the first cause of action and denied the cross motion of the defendant ResCap Liquidating Trust for summary judgment dismissing the amended complaint insofar as asserted against it.
 
ORDERED that the order is affirmed, with costs.
 
A predecessor in interest of the plaintiffs gave a mortgage on certain real property (hereinafter the subject mortgage) in favor of a predecessor in interest of the **271 defendant ResCap Liquidating Trust (hereinafter the defendant). An action to foreclose the subject mortgage was commenced in 2005 (hereinafter the 2005 action). A separate action to foreclose the subject mortgage was commenced in 2008 (hereinafter the 2008 action). The 2008 action was discontinued by stipulation, that same year, based on the pendency of the 2005 action. Ultimately, in the 2005 action, a predecessor in interest of the plaintiffs was awarded summary judgment dismissing the amended complaint insofar as asserted against him, without prejudice, based on lack of standing (see Homecomings Fin., LLC v. Guldi, 108 A.D.3d 506, 969 N.Y.S.2d 470).
 
In 2016, the plaintiffs commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record certain mortgages, including the subject mortgage. The plaintiffs moved for summary judgment on the first cause of action, seeking to cancel and discharge of record the subject mortgage. The defendant cross-moved for summary judgment dismissing the amended complaint insofar as asserted against it. In an order dated September 17, 2018, the Supreme Court granted the plaintiffs’ motion and denied the defendant’s cross motion. The defendant appeals.
 
RPAPL 1501(4) provides, in part, that “[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage ... has *769 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.” An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]; NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d 1068, 1069, 58 N.Y.S.3d 118). 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 (see 21st Mtge. Corp. v. Nweke, 165 A.D.3d 616, 618, 85 N.Y.S.3d 127; Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 A.D.3d 985, 986, 41 N.Y.S.3d 738). “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” (NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d at 1069–1070, 58 N.Y.S.3d 118).
 
Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the first cause of action pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage by demonstrating that more than six years had passed since the subject mortgage was accelerated by commencement of the 2008 action (see Bank of N.Y. Mellon v. Craig, 169 A.D.3d 627, 629, 93 N.Y.S.3d 425; 21st Mtge. Corp. v. Nweke, 165 A.D.3d at 618, 85 N.Y.S.3d 127).
 
The defendant failed to raise a triable issue of fact in opposition. Contrary to the defendant’s contention, the stipulation discontinuing the 2008 action did not, in itself, constitute an affirmative act to revoke the acceleration since, inter alia, the stipulation was silent on the issue of revocation of the election to accelerate, and did not otherwise indicate that installment payments would be accepted (see Ditech Fin., LLC v. Naidu, 175 A.D.3d 1387, 1389, 109 N.Y.S.3d 196, lv granted 34 N.Y.3d 910, 119 N.Y.S.3d 71, 141 N.E.3d 956; Aquino v. Ventures Trust 2013–I–H–R by MCM Capital Partners, 172 A.D.3d 663, 664, 100 N.Y.S.3d 386; **272 Bank of N.Y. Mellon v. Craig, 169 A.D.3d at 629, 93 N.Y.S.3d 425; U.S. Bank Trust, N.A. v. Aorta, 167 A.D.3d 807, 809, 89 N.Y.S.3d 717; Freedom Mtge. Corp. v. Engel, 163 A.D.3d 631, 633, 81 N.Y.S.3d 156, lv granted in part 33 N.Y.3d 1039, 103 N.Y.S.3d 12, 126 N.E.3d 1052; cf. NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d at 1070, 58 N.Y.S.3d 118). Additionally, there is no merit to the defendant’s alternative contention to the effect that no acceleration occurred (see Bank of N.Y. Mellon v. Dieudonne, 171 A.D.3d 34, 39–40, 96 N.Y.S.3d 354).
 
Moreover, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it.
 
*770 Accordingly, we agree with the Supreme Court’s determination granting the plaintiffs’ motion for summary judgment on the first cause of action and denying the defendant’s cross motion for summary judgment dismissing the amended complaint insofar as asserted against it.
 
RIVERA, J.P., BALKIN, LEVENTHAL and CONNOLLY, JJ., concur.
All Citations
186 A.D.3d 768, 127 N.Y.S.3d 270 (Mem), 2020 N.Y. Slip Op. 04608
End of Document
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