Deutsche Bank Natl. Trust Co. v. March

2021 NY Slip Op 00834, 191 A.D.3d 762, 138 N.Y.S.3d 356

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2021
• Docket: Index No. 708074/18
• Status: Published

Opinion

Deutsche Bank Natl. Trust Co. v March (2021 NY Slip Op 00834)

Deutsche Bank Natl. Trust Co. v March

2021 NY Slip Op 00834

Decided on February 10, 2021

Appellate Division, Second 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 February 10, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
LEONARD B. AUSTIN
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.

2019-07614
(Index No. 708074/18)

[*1]Deutsche Bank National Trust Company, etc., respondent,

v

Anthony March, appellant, et al., defendants. David B. Calender, Valley Stream, NY, for appellant.

Parker Ibrahim & Berg LLP, New York, NY (Ben Z. Raindorf of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Anthony March appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered April 19, 2019. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred.

ORDERED that the order is affirmed, with costs.

Since the defendant demonstrated that the acceleration of the mortgage debt occurred more than six years prior to the commencement of the present action, the defendant sustained his initial burden of demonstrating, prima facie, that the action was untimely (see 21st Mtge. Corp. v Balliraj, 177 AD3d 687, 689). However, in opposition, the plaintiff raised a triable issue of fact as to whether the plaintiff revoked its election to accelerate the debt. The plaintiff submitted evidence that, in addition to voluntarily discontinuing a prior foreclosure action, it resumed its demand for monthly installment payments by invoicing the defendant for those payments (see Christiana Trust v Barua, 184 AD3d 140, 146-147; Milone v US Bank N.A., 164 AD3d 145, 154).

The Supreme Court properly declined to consider the defendant's additional arguments in support of his motion for summary dismissing the complaint insofar as asserted against him as those arguments were raised for the first time in his reply papers (see First Republic Bank v Salander, 131 AD3d 668, 669).

CHAMBERS, J.P., AUSTIN, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court