Bayview Loan Servicing, LLC v. Dalal

2020 NY Slip Op 3629, 124 N.Y.S.3d 537, 184 A.D.3d 547

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 2020
• Docket: 11727N 32090/16E
• Status: Published

Opinion

Bayview Loan Servicing, LLC v Dalal (2020 NY Slip Op 03629)

Bayview Loan Servicing, LLC v Dalal

2020 NY Slip Op 03629

Decided on June 25, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 25, 2020
Renwick, J.P., Mazzarelli, Webber, Kern, Moulton, JJ.

11727N 32090/16E

[*1] Bayview Loan Servicing, LLC, Plaintiff-Respondent,

v

Dany Dalal, et al., Defendants, Link Point Realty, Inc., Defendant-Appellant.

Warner & Scheuerman, New York (Jonathan D. Warner of counsel), for appellant.

Fein, Such & Crane, LLP, Westbury (Michael S. Hanusek of counsel), for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered July 10, 2019, which denied defendant Link Point Realty's motion to renew the part of the prior order (Mary Ann Brigantti, J.), entered on or about February 14, 2017, which denied its cross motion for summary judgment dismissing plaintiff's complaint as time-barred, unanimously affirmed, with costs.

Defendant did not demonstrate the change in the law necessary to support a motion for renewal (see Jackson v Westminster House Owners Inc., 52 AD3d 404, 405 [1st Dept 2008]). The decision relied on by defendant, Milone v U.S. Bank N.A. (164 AD3d 145 [2d Dept 2018], lv denied 34 NY3d 1009 [2019]), simply reiterated the law that a de-acceleration letter must be clear in its intent to de-accelerate the loan if it is to avoid being deemed pretextual. Consistent with Milone, Supreme Court held that the notice sent by the loan servicer to inform the mortgagor that the loan, which had been previously accelerated by plaintiff's predecessor in interest, was de-accelerated and reinstated as an installment loan, created a genuine issue of material fact as to whether plaintiff brought its foreclosure action within the six-year limitations period. Thus, the notice was sufficient to defeat defendant's motion for summary judgment on limitations grounds.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 25, 2020

CLERK