Opinion
2011-12-13
Yeshiva Chasdei TORAH, et al., appellants, v. DELL EQUITY, LLC, et al., respondents, et al., defendants.
Samuel A. Ehrenfeld, New York, N.Y., for appellants. Hodgson Russ, LLP, New York, N.Y. (Roy I. Martin and Gary Heller of counsel), for respondents.
Samuel A. Ehrenfeld, New York, N.Y., for appellants. Hodgson Russ, LLP, New York, N.Y. (Roy I. Martin and Gary Heller of counsel), for respondents.
WILLIAM F. MASTRO, A.P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action to foreclose a mortgage, the plaintiffs appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated May 11, 2010, which granted the motion of the defendants Dell Equity, LLC, and 1600 Street Holding, LLC, to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1), (5), and (7).
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Dell Equity, LLC, and 1600 Street Holding, LLC, to dismiss the complaint insofar as asserted against them is denied.
The Supreme Court erred in granting that branch of the motion of the defendants Dell Equity, LLC, and 1600 Street Holding, LLC (hereinafter together the defendants), which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7). The fact that the plaintiffs had alleged in the complaint that the action was pursuant to RPAPL article 15 was not an adequate basis for granting that branch of the defendants' motion, since that was a mere irregularity ( see CPLR 2001), and the complaint otherwise states a cause of action to foreclose on a mortgage pursuant to RPAPL article 13.
“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” ( Rakusin v. Miano, 84 A.D.3d 1051, 1052, 923 N.Y.S.2d 334; see Swift v. New York Med. Coll., 25 A.D.3d 686, 687, 808 N.Y.S.2d 731). Here, although the Supreme Court properly concluded that this action was one to foreclose on a mortgage pursuant to RPAPL article 13, which has a six-year statute of limitations ( see CPLR 213[4] ), and not, as alleged in the complaint, one pursuant to RPAPL article 15, it erred in granting that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against them on the ground that the action was time-barred. The defendants failed to establish, prima facie, the accrual date of the foreclosure cause of action ( see Romanelli v. Disilvio, 76 A.D.3d 553, 555, 907 N.Y.S.2d 258).
The Supreme Court also erred in granting that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1) based on the documentary evidence. In order to be considered documentary, the evidence “must be unambiguous and of undisputed authenticity” ( Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569), that is, it must be “essentially unassailable” ( Suchmacher v. Manana Grocery, 73 A.D.3d 1017, 1017, 900 N.Y.S.2d 686). Here, the satisfaction of mortgage was not “unambiguous and of undisputed authenticity,” as two different versions of it were produced, one indicating that the mortgage principal was $40,000 and the other indicating that the mortgage principal was $400,000.
The defendants' remaining contention regarding the “presumption of payment” was raised for the first time in their reply brief on appeal and, thus, is not properly before this Court ( see Jackson v. Tide Way Homes, Inc., 62 A.D.3d 754, 755, 878 N.Y.S.2d 452).