Albin v. Pearson

Appellate Division of the Supreme Court of New York

Albin v. Pearson

266 A.D.2d 487, 698 N.Y.S.2d 732, 1999 N.Y. App. Div. LEXIS 12291

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 29, 1999

StatusPublished

Cited by4 cases

This text of 266 A.D.2d 487 (Albin v. Pearson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Albin v. Pearson, 266 A.D.2d 487, 698 N.Y.S.2d 732, 1999 N.Y. App. Div. LEXIS 12291 (N.Y. Ct. App. 1999).

Pincite

Opinion

—In an action pursuant to RPAPL 1501 (4) to cancel and discharge of record certain mortgages, the defendant appeals from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Joseph, J.), entered November 6, 1998, as denied her motion for summary judgment dismissing the complaint, granted the plaintiffs cross application for summary judgment, and thereupon cancelled and discharged the mortgages.

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

In 1988 the respondent gave two mortgages on certain real property to the appellant. Those mortgages were the third and fourth mortgages, respectively, on the subject property. Although the respondent did not make a single payment on either of the mortgages, the appellant never commenced an action to foreclose them. In 1992 the respondent filed for relief under 1978 Bankruptcy Code (11 USC) chapter 13. The appellant contends that the respondent’s bankruptcy plan, which provided that the respondent make payment on the second and third mortgages, constituted a promise to pay the mortgage debt within the meaning of General Obligations Law § 17-105 (1) and, therefore, extended the Statute of Limitations. We disagree. Unlike the defendant in Albin v Dallacqua (254 AD2d 444), who held the second mortgage on the subject property, the appellant rejected the respondent’s bankruptcy plan. Under these circumstances, the appellant cannot now rely upon that plan. Furthermore, since it is undisputed that the appellant failed to commence an action to foreclose the third and fourth mortgages within the six-year Statute of Limitations (see, CPLR 213 [4]), the Supreme Court properly granted the respondent summary judgment cancelling and discharging those mortgages. S. Miller, J. P., Thompson, Krausman, Florio and Schmidt, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In an action pursuant to RPAPL 1501 (4) to cancel and discharge of record certain mortgages, the defendant appeals from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Joseph, J.), entered November 6, 1998, as denied her motion for summary judgment dismissing the complaint, granted the plaintiffs cross application for summary judgment, and thereupon cancelled and discharged the mortgages.

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

In 1988 the respondent gave two mortgages on certain real property to the appellant. Those mortgages were the third and fourth mortgages, respectively, on the subject property. Although the respondent did not make a single payment on either of the mortgages, the appellant never commenced an action to foreclose them. In 1992 the respondent filed for relief under 1978 Bankruptcy Code (11 USC) chapter 13. The appellant contends that the respondent’s bankruptcy plan, which provided that the respondent make payment on the second and third mortgages, constituted a promise to pay the mortgage debt within the meaning of General Obligations Law § 17-105 (1) and, therefore, extended the Statute of Limitations. We disagree. Unlike the defendant in Albin v Dallacqua (254 AD2d 444), who held the second mortgage on the subject property, the appellant rejected the respondent’s bankruptcy plan. Under these circumstances, the appellant cannot now rely upon that plan. Furthermore, since it is undisputed that the appellant failed to commence an action to foreclose the third and fourth mortgages within the six-year Statute of Limitations (see, CPLR 213 [4]), the Supreme Court properly granted the respondent summary judgment cancelling and discharging those mortgages. S. Miller, J. P., Thompson, Krausman, Florio and Schmidt, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

266 A.D.2d 487, 698 N.Y.S.2d 732, 1999 N.Y. App. Div. LEXIS 12291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albin-v-pearson-nyappdiv-1999.

Opinion

Related

Cite This Page — Counsel Stack