Koeppel v. Carlandia Corp.

21 A.D.3d 884, 800 N.Y.S.2d 607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 6, 2005
• Status: Published

Opinion

In an action, inter alia, to foreclose a mortgage, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Dillon, J.), entered December 12, 2003, which granted the defendants’ motion to dismiss the complaint as time-barred pursuant to CPLR 3211 (a) (5), and (2) a judgment of the same court entered December 24, 2003, which, upon the order, is in favor of the defendants and against them dismissing the complaint.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the defendants.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

We agree with the Supreme Court that this action is barred by the six-year statute of limitations applicable to an action to foreclose a mortgage (see CPLR 213 [4]). The six-year statute of limitations began to run upon the acceleration of the mortgage debt (see Notarnicola v Lafayette Farms, 288 AD2d 198 [2001]; EMC Mtge. Corp. v Patella, 279 AD2d 604 [2001]; Loiacono v Goldberg, 240 AD2d 476, 477 [1997]; see also Federal Natl. Mtge. Assn. v Mebane, 208 AD2d 892 [1994]; Thompson v Willson, 183 Misc 949, 952 [1944], affd 269 App Div 829 [1945]), and expired before the commencement of this action on May 21, 2003.

The parties’ remaining contentions are either without merit or need not be reached in light of our determination. H. Miller, J.P., Ritter, Goldstein and Skelos, JJ., concur.