FILED: QUEENS COUNTY CLERK 01/17/2019 03:29 PM
`NYSCEF DOC. NO. 93
`
`INDEX NO. 712756/2015
`
`RECEIVED NYSCEF: 01/17/2019
`
`tyrant Toad of tilt 'tate ofNew Pork
`#erottb 3lubirtal Department
`Appellate (cid:9)
`
`D57455
`C/htr
`
`AD3d
`
`CHERYL E. CHAMBERS, J.P.
`SANDRA L. SGROI
`BETSY BARROS
`ANGELA G. IANNACCI, JJ.
`
`2017-10556 (cid:9)
`
`Ventures Trust 2013-I-H-R by MCM Capital
`Partners, LLC, Its Trustee, respondent, v Uma
`Chitbahal, et al., defendants, Jorge Soto, et al.,
`appellants.
`
`(Index No. 712756/15)
`
`Argued - October 30, 2018
`
`DECISION & ORDER
`
`VS 1j. so
`7ie019
`COUNTY CLERK
`QUEENS COUNTY
`
`Queens Legal Services, Jamaica, NY (Christopher Newton of counsel), for appellants.
`
`Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Ruth O'Connor
`of counsel), for respondent.
`
`In an action to foreclose a mortgage, the defendants Jorge Soto and Carolina Soto
`appeal from an order of the Supreme Court, Queens County (Thomas D. Raffaele, J.), entered June
`29, 2017. The order granted the plaintiffs motion, inter alia, for summary judgment on the
`complaint and for an order of reference, and, in effect, denied the cross motion of the defendants
`Jorge Soto and Carolina Soto for summary judgment dismissing the complaint insofar as asserted
`against them as barred by the statute of limitations.
`
`ORDERED that the order is reversed, on the law, with costs, the plaintiffs motion,
`inter alia, for summary judgment on the complaint and for an order of reference is denied, and the
`cross motion of the defendants Jorge Soto and Carolina Soto pursuant to CPLR 3212 and 213(4) to
`dismiss the complaint insofar as asserted against them as barred by the statute of limitations is
`granted.
`
`The plaintiff seeks to foreclose a mortgage on the subject premises, which is located
`in Queens. In August 2009, the plaintiffs predecessor-in-interest, JPMorgan Chase Bank, National
`Association (hereinafter Chase), commenced a mortgage foreclosure action in the Supreme Court,
`Queens County, under Index No. 23427/09 (hereinafter the prior action). In 2010, the court issued
`an order of reference and a judgment of foreclosure and sale in the prior action.
`
`Page 1.
`_ (cid:9)
`December 5,2018 (cid:9)
`VENTURES TRUST 2013-I-H-R BY MCM CAPITAL PARTNERS, LLC, ITS TRUSTEE v
`CHITBAHAL
`
`1 of 2
`
`(cid:9)
`(cid:9)
`

`

`FILED: QUEENS COUNTY CLERK 01/17/2019 03:29 PM
`NYSCEF DOC. NO. 93
`
`INDEX NO. 712756/2015
`
`RECEIVED NYSCEF: 01/17/2019
`
`In 2013, Chase assigned the subject mortgage to the plaintiff. Subsequently, in 2015,
`Chase, through its attorneys, filed an ex parte application, among other things, to discontinue the
`prior action and vacate the judgment of foreclosure and sale. By order entered November 2,2015,
`the Supreme Court, inter alia, granted Chase's application, vacated and set aside the judgment of
`foreclosure and sale, and discontinued the prior action. The reasons for the discontinuance of the
`prior action do not appear in the record before us.
`
`The plaintiff thereafter commenced this action by summons and complaint dated
`December 10, 2015, and the defendants Jorge Soto and Carolina Soto (hereinafter together the Sotos)
`joined issue, asserting various affirmative defenses, including that the action was barred by the
`statute of limitations. The plaintiff subsequently moved, inter alia, for summary judgment on the
`complaint and for an order of reference, and the Sotos cross-moved for summary judgment
`dismissing the complaint insofar as asserted against them as barred by the statute of limitations. The
`Supreme Court granted the motion and, in effect, denied the cross motion. The Sotos appeal.
`
`An action to foreclose a mortgage is subject to a six-year statute of limitations (see
`CPLR 213[4]). That limitations period begins to run on the entire debt when the mortgagee elects
`to accelerate the mortgage (see US. Bank, NA. v Martin, 144 AD3d 891, 891-892; EMC Mtge.
`Corp. v Smith, 18 AD3d 602; Loiacono v Goldberg, 240 AD2d 476, 477).
`
`In support of their cross motion for summary judgment dismissing the complaint
`insofar as asserted against them as barred by the statute of limitations, the Sotos submitted, among
`other things, a copy of the complaint in the prior action commenced by the plaintiff's predecessor-in-
`interest, Chase, in which Chase specifically stated that it "elects to call due the entire amount secured
`by this mortgage." This established that the mortgage debt was accelerated upon the commencement
`of the prior action in August 2009 (see Freedom Mtge. Corp. v Engel, 163 AD3d 631, 632-633;
`EMC Mtge. Corp. v Smith, 18 AD3d at 603). Since the plaintiff did not commence this action until
`December 2015, the Sotos sustained their prima facie burden on their cross motion (see Freedom
`Mtge. Corp. v Engel, 163 AD3d at 633).
`
`In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to- the-
`plaintiffs contention, under the circumstances presented, the tolling provisions of CPLR 205(a) were
`inapplicable (see CPLR 205[a]; compare EB Brands Holdings, Inc. v McGladrey, LLP, 154 AD3d
`646, 647-648, and Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768,
`768-769, with George v Mt. Sinai Hosp., 47 NY2d 170, 180-181; cf. Censor v Mead Reinsurance
`Corp., 176 AD2d 600, 601).
`
`Accordingly, the Supreme Court should have granted the Sotos' cross motion for
`summary judgment dismissing the complaint insofar as asserted against them, and denied the
`plaintiffs motion, inter alia, for summary judgment on the complaint and for an order of reference.
`
`prilanne Agos mo
`Clerk of the Court
`
`CHAMBEDRJAr aiindaiRATokIANNACCI, JJ concur.
`APPELLATE DIVISION SECOND DEPT.
`I, APRILANNE AGOSTINO, Clerk of the Appellate Division ofriKEFIRem
`Court, Second J udicial Department, do hereby certifythat I have compare
`and that (cid:9)
`this copy with the original filed in my office on (cid:9)
`this copy is a correct transcription of said originic 05 2016
`IN WITNESS WHEREOF I have hereunto se my hand and affixed
`December 5, 201 EC 0friteutigne-, (cid:9)
`the_seal of this Court on
`
`VENTURES TRUST (cid:9)
`
`3-I-H-R
`
`Page 2.
`YilfvICM CAPITAL PARTNERS, LLC, ITS TRUSTEE v
`CHITBAHAL
`
`2 of 2
`
`