Rouge v U.S. Bank Trust N.A. 2024 NY Slip Op 33540(U) October 7, 2024 Supreme Court, New York County Docket Number: Index No. 152023/2022 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 152023/2022 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/07/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 152023/2022 FRANCOISE ROUGE, MOTION DATE 08/17/2022 Plaintiff, MOTION SEQ. NO. 001 - V -
U.S. BANK TRUST NATIONAL ASSOCIATION AS LEGAL TRUSTEE FOR CABANA SERIES Ill TRUST, BOARD OF DECISION + ORDER ON MANAGERS OF THE ALLEGRO CONDOMINIUM MOTION
Defendants. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29, 30, 31,32, 33, 34, 35, 36,37,38, 39,40,41,42,43, 44,45,46,47,48 were read on this motion for SUMMARY JUDGMENT(AFTER JOINDER)
Upon the foregoing papers, plaintiffs motion for summary judgment is granted for the
reasons set forth below.
In this action, plaintiff seeks a declaratory judgment, pursuant to RP APL 1501(4), that the
mortgage against 62 West 62nd Street, Apt. 20D, New York, New York 10023 held by defendant
U.S. Bank Trust National Association as Legal Trustee For Cabana Series III Trust ("US Bank")
and the promissory note secured by this mortgage are invalid and unenforceable. Defendant
interposed an Answer asserting various affirmative defenses and a counterclaim for breach of
contract on the subject promissory note (NYSCEF Doc. No. 6).
FACTUAL BACKGROUND
Plaintiff purchased 62 West 62nd Street, Apt. 20D, New York, NY 10023 (the "Premises"),
a condominium apartment, in 1996. Between 2004 and 2007, plaintiff executed three mortgages
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encumbering the Premises, which mortgages were consolidated with their attendant promissory
notes on September 21, 2007 (the "Mortgage") and recorded with the New York City Register on
October 22, 2007 under CRFN 2007000532316 (NYSCEF Doc. No. 23).
On May 11, 2011, defendant's predecessor-in-interest commenced an action to foreclose
on the Mortgage in the New York County Supreme Court, NRZ Pass-Through Trust IV, U.S. Bank
National Association as Trustee v. Francoise Rouge et al, under index number 810148/2011 (the
"Prior Action"). The Prior Action was dismissed in January 2020, for lack of personal jurisdiction,
which dismissal was, effectively, affirmed on appeal by the Appellate Division, First Department
in November 2021 (NRZ Pass-Through Tr. IV v Rouge, 199 AD3d 466 [1st Dept 2021])
Plaintiff now moves for summary judgment on her complaint, asserting that the six-year
statute of limitations on any action to foreclose the Mortgage ran on May 11, 2017. US Bank
opposes, arguing that the statute oflimitations was tolled during the pendency of the Prior Action.
DISCUSSION
Plaintiffs motion for summary judgment is granted. "Pursuant to RPAPL 1501(4), a
person having an estate or interest in real property subject to a mortgage may maintain an action
to secure the cancellation and discharge of the encumbrance, and to adjudge the estate or interest
free of it, if the applicable statute of limitations for commencing a foreclosure action has expired"
(Daldan, Inc. v Deutsche Bank Natl. Tr. Co., 188 AD3d 989, 990 [2d Dept 2020]). The statute of
limitations for commencing such a foreclosure action is six years (CPLR 213 [4]).
Plaintiff has met her prima facie burden with evidence that she is the current owner of the
property and that the statute of limitations began to run on May 11, 20 I I-when US Bank's
predecessor-in-interest commenced the Prior Action, thereby accelerating the full amount of the
subject debt-and elapsed on May 11, 2017, precluding any new action to foreclose on the
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Mortgage (See Daldan, Inc. v Deutsche Bank Natl. Tr. Co., 188 AD3d 989, 990-91 [2d Dept
2020]).
In opposition, US Bank notes that CPLR 204(a), directs that "[w]here the commencement
of an action has been stayed by a court or by a statutory prohibition, the duration of the stay is not
a part of the time within which the action must be commenced" but argues, incorrectly, that RP APL
1301(3) is a statutory prohibition under CPLR 204(a) such that the statute of limitations for a
further action to foreclose the Mortgage was tolled during the pendency of the Prior Action. In
fact, RPAPL 1301(3) expressly disclaims its use in this manner, as it states that:
While the action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, including an action to foreclose the mortgage, without leave of the court in which the former action was brought. The procurement of such leave shall be a condition precedent to the commencement of such other action and the failure to procure such leave shall be a defense to such other action ... This subdivision shall not be treated as a stay or statutory prohibition for purposes of calculating the time within which an action shall be commenced and the claim interposed pursuant to sections two hundred four and two hundred thirteen of the civil practice law and rules.
(RPAPL 1301[3] [emphasis added]).
Accordingly, defendant's "contention that RPAPL 1301(3) operated as a statutory
prohibition for the purpose of determining when the statute of limitations began to run is without
merit" 1 (Citimortgage, Inc. v Ford, 186 AD3d 1609, 1610 [2d Dept 2020]; see also Daldan, Inc. v
Deutsche Bank Natl. Tr. Co., 188 AD3d 989, 990-91 [2d Dept 2020]). Neither does US Bank's
citation to the Court of Appeals' decision in Lubonty v U.S. Bank N.A., 34 NY3d 250,252 (2019),
alter this conclusion. As US Bank acknowledges, Lubonty involved an express statutory
prohibition in the form of 11 USC §362 while no such statutory prohibition pertains here.
1 While the Third and Fourth Departments of the Appellate Division have reached a contrary conclusion (See CitiMortgage, Inc. v Ramirez, 192 AD3d 70, 74-75 [3d Dept 2020]; Phalen-Sobolevsky v Mullin, 26 AD3d 806 [4th Dept. 2006]), for the reasons set forth above, the Court adheres to Appellate Division, Second Department precedent on this issue. 152023/2022 ROUGE, FRANCOISE vs. U.S. BANK TRUST NATIONAL ASSOCIATION AS LEGAL Page 3 of 6 TRUSTEE FOR CABANA SERIES Ill TRUST ET AL Motion No. 001
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Accordingly, plaintiffs motion for summary judgment on her complaint is granted, as is that
branch of plaintiffs motion to dismiss defendant's counterclaim for breach of contract, since this
claim is time-barred.
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Rouge v U.S. Bank Trust N.A. 2024 NY Slip Op 33540(U) October 7, 2024 Supreme Court, New York County Docket Number: Index No. 152023/2022 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 152023/2022 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/07/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 152023/2022 FRANCOISE ROUGE, MOTION DATE 08/17/2022 Plaintiff, MOTION SEQ. NO. 001 - V -
U.S. BANK TRUST NATIONAL ASSOCIATION AS LEGAL TRUSTEE FOR CABANA SERIES Ill TRUST, BOARD OF DECISION + ORDER ON MANAGERS OF THE ALLEGRO CONDOMINIUM MOTION
Defendants. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29, 30, 31,32, 33, 34, 35, 36,37,38, 39,40,41,42,43, 44,45,46,47,48 were read on this motion for SUMMARY JUDGMENT(AFTER JOINDER)
Upon the foregoing papers, plaintiffs motion for summary judgment is granted for the
reasons set forth below.
In this action, plaintiff seeks a declaratory judgment, pursuant to RP APL 1501(4), that the
mortgage against 62 West 62nd Street, Apt. 20D, New York, New York 10023 held by defendant
U.S. Bank Trust National Association as Legal Trustee For Cabana Series III Trust ("US Bank")
and the promissory note secured by this mortgage are invalid and unenforceable. Defendant
interposed an Answer asserting various affirmative defenses and a counterclaim for breach of
contract on the subject promissory note (NYSCEF Doc. No. 6).
FACTUAL BACKGROUND
Plaintiff purchased 62 West 62nd Street, Apt. 20D, New York, NY 10023 (the "Premises"),
a condominium apartment, in 1996. Between 2004 and 2007, plaintiff executed three mortgages
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encumbering the Premises, which mortgages were consolidated with their attendant promissory
notes on September 21, 2007 (the "Mortgage") and recorded with the New York City Register on
October 22, 2007 under CRFN 2007000532316 (NYSCEF Doc. No. 23).
On May 11, 2011, defendant's predecessor-in-interest commenced an action to foreclose
on the Mortgage in the New York County Supreme Court, NRZ Pass-Through Trust IV, U.S. Bank
National Association as Trustee v. Francoise Rouge et al, under index number 810148/2011 (the
"Prior Action"). The Prior Action was dismissed in January 2020, for lack of personal jurisdiction,
which dismissal was, effectively, affirmed on appeal by the Appellate Division, First Department
in November 2021 (NRZ Pass-Through Tr. IV v Rouge, 199 AD3d 466 [1st Dept 2021])
Plaintiff now moves for summary judgment on her complaint, asserting that the six-year
statute of limitations on any action to foreclose the Mortgage ran on May 11, 2017. US Bank
opposes, arguing that the statute oflimitations was tolled during the pendency of the Prior Action.
DISCUSSION
Plaintiffs motion for summary judgment is granted. "Pursuant to RPAPL 1501(4), a
person having an estate or interest in real property subject to a mortgage may maintain an action
to secure the cancellation and discharge of the encumbrance, and to adjudge the estate or interest
free of it, if the applicable statute of limitations for commencing a foreclosure action has expired"
(Daldan, Inc. v Deutsche Bank Natl. Tr. Co., 188 AD3d 989, 990 [2d Dept 2020]). The statute of
limitations for commencing such a foreclosure action is six years (CPLR 213 [4]).
Plaintiff has met her prima facie burden with evidence that she is the current owner of the
property and that the statute of limitations began to run on May 11, 20 I I-when US Bank's
predecessor-in-interest commenced the Prior Action, thereby accelerating the full amount of the
subject debt-and elapsed on May 11, 2017, precluding any new action to foreclose on the
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Mortgage (See Daldan, Inc. v Deutsche Bank Natl. Tr. Co., 188 AD3d 989, 990-91 [2d Dept
2020]).
In opposition, US Bank notes that CPLR 204(a), directs that "[w]here the commencement
of an action has been stayed by a court or by a statutory prohibition, the duration of the stay is not
a part of the time within which the action must be commenced" but argues, incorrectly, that RP APL
1301(3) is a statutory prohibition under CPLR 204(a) such that the statute of limitations for a
further action to foreclose the Mortgage was tolled during the pendency of the Prior Action. In
fact, RPAPL 1301(3) expressly disclaims its use in this manner, as it states that:
While the action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, including an action to foreclose the mortgage, without leave of the court in which the former action was brought. The procurement of such leave shall be a condition precedent to the commencement of such other action and the failure to procure such leave shall be a defense to such other action ... This subdivision shall not be treated as a stay or statutory prohibition for purposes of calculating the time within which an action shall be commenced and the claim interposed pursuant to sections two hundred four and two hundred thirteen of the civil practice law and rules.
(RPAPL 1301[3] [emphasis added]).
Accordingly, defendant's "contention that RPAPL 1301(3) operated as a statutory
prohibition for the purpose of determining when the statute of limitations began to run is without
merit" 1 (Citimortgage, Inc. v Ford, 186 AD3d 1609, 1610 [2d Dept 2020]; see also Daldan, Inc. v
Deutsche Bank Natl. Tr. Co., 188 AD3d 989, 990-91 [2d Dept 2020]). Neither does US Bank's
citation to the Court of Appeals' decision in Lubonty v U.S. Bank N.A., 34 NY3d 250,252 (2019),
alter this conclusion. As US Bank acknowledges, Lubonty involved an express statutory
prohibition in the form of 11 USC §362 while no such statutory prohibition pertains here.
1 While the Third and Fourth Departments of the Appellate Division have reached a contrary conclusion (See CitiMortgage, Inc. v Ramirez, 192 AD3d 70, 74-75 [3d Dept 2020]; Phalen-Sobolevsky v Mullin, 26 AD3d 806 [4th Dept. 2006]), for the reasons set forth above, the Court adheres to Appellate Division, Second Department precedent on this issue. 152023/2022 ROUGE, FRANCOISE vs. U.S. BANK TRUST NATIONAL ASSOCIATION AS LEGAL Page 3 of 6 TRUSTEE FOR CABANA SERIES Ill TRUST ET AL Motion No. 001
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Accordingly, plaintiffs motion for summary judgment on her complaint is granted, as is that
branch of plaintiffs motion to dismiss defendant's counterclaim for breach of contract, since this
claim is time-barred.
Finally, Plaintiffs motion to dismiss defendant's affirmative defenses is also granted.
Defendant's first, second, fourth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth,
fourteenth, and fifteenth affirmative defenses "plead conclusions of law without supporting facts"
(See 170 W. Vil. Assoc. v G & E Realty, Inc., 56 AD3d 372, 372-373 [1st Dept 2008]), while
defendant's third affirmative defense, for unjust enrichment, does not lie in this action arising out
of valid written contract (See Knox v Countrywide Home Loans, Inc., 205 AD3d 792, 793 [2d
Dept 2022]).
Accordingly, it is
ORDERED that plaintiffs motion for summary judgment is granted; and it is further
ORDERED and ADJUDGED that the mortgage, dated September 21, 2007 and recorded
in the Office of the City Register of the City of New York on October 22, 2007 as CRFN
2007000532316, in favor of JPMorgan Chase Bank, N.A. and assigned to U.S. Bank Trust
National Association as Legal Trustee for Cabana Series III Trust on June 3, 2019, under CRFN
2019000189617, as well as the component mortgages recorded under CRFN 2005000067197,
CRFN 2007000338426, CRFN 2007000338427, and CRFN 200700053, are hereby vacated,
cancelled, and expunged from the public record, and are void and unenforceable against the
property at 62 West 62nd Street, Apt. 20D, New York, New York 10023 (Block 01114, Lot 1189);
and it is further
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ORDERED and ADJUDGED that U.S. Bank Trust National Association as Legal Trustee
for Cabana Series III Trust and its successors and assigns are forever barred from asserting any
claim to or interest in the premises by virtue of the cancelled mortgage; and it is further
ORDERED that the New York City Register and the New York County Clerk's Office
shall, upon payment of proper fees, to cancel, discharge, strike, and remove the promissory note
recorded in the New York City Register on June 17, 2019 under CRFN 2019000189617, as well
as the component notes recorded in CRFN 2005000067197, CRFN 2007000338426, CRFN
2007000338427, and CRFN 2007000532315; and it is further
ORDERED that the County Clerk of New York County is directed to cancel and discharge
all Notices of Pendency filed against Block 01114, Lot 1189 in this action and in the New York
State Supreme Court, New York County action NRZ Pass-Through Trust IV, U.S. Bank National
Association as Trustee v. Francoise Rouge et al, Index No.: 810148/2011, and said Clerk is hereby
directed to enter upon the margin of the record of same a Notice of Cancellation referring to this
Order; and it is further
ORDERED that plaintiff shall, within ten days of the date of this decision and order, serve
a copy of this decision and order with notice of entry on defendants; and it is further
ORDERED that plaintiff shall, within ten days of the date of this decision and order, serve
a copy of this decision and order with notice of entry upon the Clerk of the Court (60 Centre Street,
Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are
directed to enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on
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Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the
"EFiling" page on this court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision, order, and judgment of the court.
10/7/2024 DATE HON. JUDY H. KIM, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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