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(HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT).

The Second Department, in affirming defendant’s conviction, noted that it was (harmless) error to show the jury the injured child in this shaken baby case because the extent of the long-term effects of the injury was not an element of the crime:

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We agree with the defendant that the Supreme Court improvidently exercised its discretion in allowing the People to display the injured child to the jury during the mother’s testimony, since the extent of the child’s long-term injuries was not an element of the crime … , and such display only served to prejudice the defense by arousing the emotions of the jury … . Nevertheless, the error was harmless … . Given the extensive and uncontroverted medical evidence supporting the diagnosis of shaken baby syndrome and that the child’s injuries could have only occurred when the child was with the defendant, the evidence of the defendant’s guilt was overwhelming. Moreover, there is no significant probability that the jury would have acquitted the defendant had it not been for the error … . People v Narine, 2017 NY Slip Op 06460, Second Dept 9-13-17

CRIMINAL LAW ((HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))/SHAKEN BABY SYNDROME (CRIMINAL LAW, (HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))

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(HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT).

The Second Department, in affirming the conviction of defendants as part of a large scale heroin distribution operation, determined it was error to allow the lead detective to explain to the jury the roles played by the persons recorded by the wiretaps. It was also error to admit the wiretap orders into evidence. Given the overwhelming evidence, however, the errors were deemed harmless:

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… [W]hile “it was error to permit the prosecutor to elicit testimony [from the investigating detective] as to the roles played by the individuals overheard in the phone calls[ ] and the relationships among them, . . . and the meanings of certain case-specific’ terms that he had discovered in the course of the investigation” … , the error was harmless, “as the proof of the defendant’s commission of the charged crimes was overwhelming, and there is no significant probability that, but for the error, the verdict . . . would have been less adverse'” … .

The County Court also improvidently exercised its discretion in admitting into evidence the wiretap court orders. Although the court orders were relevant, as authorizing the wiretapping that led to a large part of the People’s evidence, and their admission had a tendency to prove the existence of a material fact, i.e., that the wiretapping was authorized … , that same fact could have been established without the prejudice they caused. Nevertheless, here, too, the error was harmless. People v Guzman, 2017 NY Slip Op 06454, Second Dept 9-13-17

 

CRIMINAL LAW ((HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/WIRETAPS (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/EAVESDROPPING (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))

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42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s 42 USC 1983 cause of action, as well as the malicious prosecution cause of action, should not have been dismissed. The court noted that the notice of claim need not name any individual police officers who are subsequently sued (acknowledging a split of authority on the issue). The court also explained the statutes of limitations as they apply to false arrest, false imprisonment, malicious prosecution and 42 USC 1983 causes of action:

The complaint alleged that the defendants arrested, detained, and prosecuted the plaintiff without probable cause and that they knew that the criminal complaint contained falsehoods. The eyewitness’s affidavit … supported these allegations by asserting that police and an ADA coerced the eyewitness to make a false identification of the plaintiff. …

Further, … the eyewitness’s affidavit did not present feigned issues of fact. The eyewitness did not give any prior testimony in this action … . … [H]is affidavit did not contradict the plaintiff’s prior testimony, including the plaintiff’s deposition testimony that the eyewitness was “scared” when the police talked to him about the shooting. …

[T]he plaintiff raised a triable issue of fact as to whether Detective Failla’s evaluation of probable cause was objectively reasonable, thus precluding an award of summary judgment in Detective Failla’s favor on the ground of qualified immunity … .

… [W]e have held that the plain language of General Municipal Law § 50-e(2) does not require a notice of claim to “[list] the names of the individuals who allegedly committed the wrongdoing” … . Williams v City of New York, 2017 NY Slip Op 06477, Second Dept 9-13-17

CIVIL RIGHTS LAW (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/42 USC 1983 (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/MUNICIPAL LAW (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/INTENTIONAL TORTS (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, 42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, INDIVIDUAL POLICE OFFICERS NEED NOT BE NAMED IN THE NOTICE OF CLAIM (SECOND DEPT))/FALSE ARREST (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/FALSE IMPRISONMENT (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/MALICIOUS PROSECUTION (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))

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QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a question of fact was raised whether plaintiff bank was aware defendants observed Saturday as a holy day, thereby invalidating nail and mail service on Saturday in this foreclosure action:

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General Business Law § 13 provides: “Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor.”

The defendants contend that the plaintiff’s counsel was aware that they are observant, Orthodox Jewish persons who adhere to the Sabbath, and thus, the Saturday affixation of process to the door of their residence was invalid. This appears to be an issue of first impression for this Court. We agree with the other courts that have addressed the issue, which have consistently held, for more than a century, that service in violation of General Business Law § 13, or its predecessor statute, is void, and personal jurisdiction is not obtained over the party served … . Moreover, we hold that the statute applies not only to personal service upon a defendant, but also to the affixation portion of “nail and mail” service pursuant to CPLR 308(4) on the door of a defendant’s residence, as occurred here … . JPMorgan Chase Bank, N.A. v Lilker, 2017 NY Slip Op 06434, Second Dept 9-13-17

 

CIVIL PROCEDURE (NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/NAIL AND MAIL (GENERAL BUSINESS LAW, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/GENERAL BUSINESS LAW  (CIVIL PROCEDURE, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))

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FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this foreclosure action should not have been dismissed because issue was never joined. Even though the defense was first raised in the reply papers, it could be considered on appeal because the issue is apparent on the face of the record and the lower court would have been required to address it:

… [T]he Supreme Court conditionally dismissed the action pursuant to CPLR 3216 unless the plaintiff filed a note of issue or otherwise moved for entry of a judgment within 90 days. The action was thereafter administratively dismissed … .

… [T]he plaintiff moved, inter alia, to vacate the conditional order of dismissal and to restore the action to the calendar. … [T]he Supreme Court denied the plaintiff’s motion, finding that the plaintiff failed to present a reasonable excuse for not complying with the conditional 90-day order to dismiss and that the delay since the time that the referee was appointed was substantial. …

… [D]ismissal of the action pursuant to the … conditional order was improper, as issue was never joined inasmuch as none of the defendants served an answer to the complaint… .. Since at least one precondition set forth in CPLR 3216 was not met here, the Supreme Court was without power to dismiss the action pursuant to that statute … .

Although the plaintiff did not raise, until its reply papers, the argument that this action was improperly dismissed pursuant to CPLR 3216 because issue had not been joined, we may consider it on appeal since the reply papers did not present new facts but only raised an issue of law which appeared on the face of the record and could not have been avoided if brought to the attention of the Supreme Court at the proper juncture … . U.S. Bank N.A. v Ricketts, 2017 NY Slip Op 06475, Second Dept 9-13-17

CIVIL PROCEDURE (FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT))/APPEALS (CIVIL PROCEDURE, FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT))/FORECLOSURE (FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT))

DESCRIPTION OF OFFICE SOUGHT WAS SUFFICIENT, DESIGNATING PETITION SHOULD NOT HAVE BEEN INVALIDATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the designating petition should not have been invalidated because the description of the office sought was sufficient:

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“Election Law § 6-132 (1) requires that each sheet of a designating petition state the public office or party position sought by the candidate'” … . Since many public offices and party positions are susceptible to a variety of descriptions, the ” description will be deemed adequate so long as the petition, read as a whole, is sufficiently informative . . . so as to preclude any reasonable probability of confusing or deceiving the signers, voters or board of elections'” … .

Here, the public office sought by Coll, Nassau County Legislator, 15th Legislative District, was described on the designating petition as “15th District Nassau County Legislature,” which was sufficiently informative so as to preclude any reasonable probability of confusing or deceiving the signers, voters, or board of elections … . Matter of Fochtman v Coll, 2017 NY Slip Op 06414, Second Dept 9-11-17

 

LECTION LAW (DESCRIPTION OF OFFICE SOUGHT WAS SUFFICIENT, DESIGNATING PETITION SHOULD NOT HAVE BEEN INVALIDATED (SECOND DEPT))/DESIGNATING PETITION (ELECTION LAW, DESCRIPTION OF OFFICE SOUGHT WAS SUFFICIENT, DESIGNATING PETITION SHOULD NOT HAVE BEEN INVALIDATED (SECOND DEPT))

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LANDLORD DEMONSTRATED THE BREAK-IN WAS NOT FORESEEABLE BECAUSE THERE HAD BEEN NO SIMILAR BREAK-INS IN THE VICINITY, PLAINTIFFS’ SUIT STEMMING FROM INJURY DURING A ROBBERY SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the landlord’s motion for summary judgment should have been granted. Plaintiffs alleged they were injured during a robbery and the landlord failed to provide sufficient protection in the form of a lock on an interior door through which the robbers gained entry. The Second Department held the landlord had demonstrated the break-in was not foreseeable because there had been no other similar break-ins:

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” … . “To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” …  ” Without evidentiary proof of notice of prior criminal activity, the owner’s duty reasonably to protect those using the premises from such activity never arises”‘… .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they lacked notice of the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject premises … . Golub v Louris, 2017 NY Slip Op 06353, Second Dept 8-30-17

 

NEGLIGENCE (LANDLORD DEMONSTRATED THE BREAK-IN WAS NOT FORESEEABLE BECAUSE THERE HAD BEEN NO SIMILAR BREAK-INS IN THE VICINITY, PLAINTIFFS’ SUIT STEMMING FROM INJURY DURING A ROBBERY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LANDLORD-TENANT (LIABILITY IN NEGLIGENCE FOR THIRD PARTY ASSAULT, LANDLORD DEMONSTRATED THE BREAK-IN WAS NOT FORESEEABLE BECAUSE THERE HAD BEEN NO SIMILAR BREAK-INS IN THE VICINITY, PLAINTIFFS’ SUIT STEMMING FROM INJURY DURING A ROBBERY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/ASSAULT (LANDLORD-TENANT, LIABILITY IN NEGLIGENCE FOR THIRD PARTY ASSAULT, LANDLORD DEMONSTRATED THE BREAK-IN WAS NOT FORESEEABLE BECAUSE THERE HAD BEEN NO SIMILAR BREAK-INS IN THE VICINITY, PLAINTIFFS’ SUIT STEMMING FROM INJURY DURING A ROBBERY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

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TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT).

The Second Department determined the defendant town’s motion for summary judgment in this ice and snow slip and fall case was properly granted. The court held that the failure to remove ice and snow is a passive in nature and is not an affirmative creation of a dangerous condition that is exempt from the written notice requirement:

Here, the Town established its prima facie entitlement to judgment as a matter of law by submitting evidence, including an affidavit from its Town Clerk, demonstrating that it did not receive prior written notice of the condition alleged, and that it did not create the alleged condition through an affirmative act of negligence. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Town created the alleged condition through an affirmative act of negligence. The plaintiff’s reliance on San Marco v Village/Town of Mount Kisco (16 NY3d 111) is misplaced. The Town’s failure to remove any snow or ice from the area where the subject accident occurred was passive in nature and does not constitute an affirmative act of negligence excepting it from prior written notice requirements … . Morreale v Town of Smithtown, 2017 NY Slip Op 06361, Second Dept 8-30-17

NEGLIGENCE (TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/SLIP AND FALL  (TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT)/WRITTEN NOTICE (SLIP AND FALL, TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE, TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT))

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QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver’s (Kostadinov’s) motion for summary judgment in this bicycle-car accident case should not have been granted. Kostadinov did not eliminate triable questions of fact about his comparative negligence:

Here, Kostadinov failed to demonstrate his prima facie entitlement to judgment as a matter of law, since the evidence submitted in support of his motion failed to establish that he was free from fault in the happening of the accident, or that the alleged negligence of the plaintiff and Karczewski were the sole proximate causes of the accident … . Specifically, the deposition testimony of all of the parties, submitted by Kostadinov in support of his motion, revealed the existence of triable issues of fact as to the manner in which the accident occurred (see id. at 934) and as to whether the impact between the plaintiff’s bicycle and Karczewski’s vehicle was a foreseeable consequence of Kostadinov reversing his vehicle against the flow of traffic within the subject intersection given the traffic conditions existing at the time of the accident … . Searless v Karczewski, 2017 NY Slip Op 06393, Second Dept 8-30-17

NEGLIGENCE (BICYCLE-CAR ACCIDENT, QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (BICYCLE-CAR ACCIDENT, QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BICYCLES (TRAFFIC ACCIDENTS, QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment discharging a mortgage after the statute of limitations on the foreclosure action had expired should have been granted. The court explained that the six year statute started to run when the debt was accelerated by the foreclosure action that was ultimately dismissed. The plaintiff demonstrated that the dismissed foreclosure action was commenced by a party with standing:

… [W]ith respect to an action pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage had expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharged the mortgage was commenced … . An action to foreclose a mortgage has a six-year statute of limitations… . “The law is well settled that, 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”… .

Here, the plaintiff submitted a copy of the summons and complaint filed in the mortgage foreclosure action commenced by the defendant’s predecessor-in-interest and the order dismissing that action pursuant to CPLR 3216 which demonstrated that the mortgage was accelerated in 2008 more than six years before the commencement of this action and that there was no longer a pending mortgage foreclosure action … . In addition, the summons and the complaint, along with the subject mortgage documents, submitted by the plaintiff on its motion, demonstrated that the defendant’s predecessor-in-interest had standing to commence the mortgage foreclosure action ….

Further, the plaintiff demonstrated that the applicable statute of limitations had expired even if the limitations period was calculated … the date by which the Federal Deposit Insurance Corporation was appointed as receiver for the defendant’s predecessor-in-interest  …. . 53 PL Realty, LLC v US Bank N.A., 2017 NY Slip Op 06345, Second Dept 8-30-17

 

FORECLOSURE (DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/EVIDENCE (FORECLOSURE, STATUTE OF LIMITATIONS, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))

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