Sansone v North Shore Invs. Realty Group, LLC 2025 NY Slip Op 31976(U) June 3, 2025 Supreme Court, Nassau County Docket Number: Index No. 611543/2017 Judge: Gregg Roth 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. FILED: NASSAU COUNTY CLERK 06/05/2025 12:04 PM INDEX NO. INDEX NO. 611543/2017 611543/2017 DOC. NO. NYSCEF DOC. NO. 179 NYSCEF: 06/05/2025 RECEIVED NYSCEF: 06/05/2025
SUPREME COURT - STATE OF NEW YORK
PRESENT: Honorable Gregg Roth Justice of the Supreme Court
X ----------------- ELYSE M. SANSONE, TRIAL/IAS, PART 29 NASSAU COUNTY Plaintiff(s), -against- Index No.: 611543/2017
Motion Seq No.: 004 NORTH SHORE INVESTORS REALTY GROUP, LLC AND NASSAU COUNTY CLERK, Motion Submitted: 4/7/25
Defendant( s).
-----------------X The following papers read on this motion:
Notice of Motion/Supporting Exhibits ............................................. X
Upon the foregoing e-filed papers, Plaintiff Elyse M. Sansone's ("Plaintiff')
motion seeking an order pursuant to CPLR 3212 granting summary judgment in her favor
as to her Complaint insofar as asserted against Defendant North Shore Investors Realty
Group, LLC ("Defendant") and pursuant to CPLR 3025(c) amending the pleadings to
conform to the evidence determined as set forth hereinafter.
Plaintiff commenced this action pursuant to RP APL 1501 (4) to cancel and
discharge of record a mortgage encumbering a property located at 24 North Strathmore
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Street, Valley Stream, New York ("the premises"). On August 3, 2007, Richard Sansone
("Borrower"), Plaintiffs husband, executed a mortgage in the sum of $412,000 in favor of
Mortgage Electronic Registration Systems, Inc. ("MERS ") as nominee for Resmae
Mortgage Corporation ("Resmae") as security for repayment of a note. Borrower
defaulted under the terms of the mortgage on or about July 2008. The mortgage was then
assigned to Wells Fargo Bank ("Wells Fargo") as Trustee for the Resmae Mortgage.
Wells Fargo commenced a foreclosure action on June 19, 2009 titled Wells Fargo Bank,
NA as Trustee for the Resmae Mortgage Loan Trust Mortgage Pass-Through Certificates,
Series 2007-1 v Rick Sansone, Index No. 11942/2009 ("2009 action"). The Borrower died
on August 11, 2009 and Plaintiff, as his sole heir, inherited ownership to the premises.
Subsequently, on February 3, 2012, the 2009 action was discontinued pursuant to a
Stipulation of Discontinuance.
On or about May 2011, the mortgage was assigned to Kondaur Capital
Corporation ("Kondaur"). On March 21, 2012, Kondaur commenced a second foreclosure
action titled Kondour Capital Contribution v Jeffrey E Deluca, et. al., under Index No.
3649/2012 ("2012 action"). The mortgage was assigned to Defendant on January 14,
2014. On June 14, 2016, the 2012 action was voluntary discontinued by Kondour. On
October 27, 2017, Plaintiff commenced the instant action seeking to cancel and discharge
of record the mortgage on the premises on the ground that the statute of limitations within
which to commence an action to foreclose a mortgage had expired. On April 18, 2018,
Defendant commenced a third foreclosure action titled North Shore Investors Realty
2 of 7 [* 2] FILED: NASSAU COUNTY CLERK 06/05/2025 12:04 PM INDEX NO. INDEX NO. 611543/2017 611543/2017 DOC. NO. NYSCEF DOC. NO. 179 NYSCEF: 06/05/2025 RECEIVED NYSCEF: 06/05/2025
Group, II, LLC v Jeffrey E. Deluca, et. al., under Index No 000443/2018 ("2018 action").
By Decision and Order dated April 23, 2018 and entered April 25, 2018, this Court
cancelled and discharged of record the mortgage on the premises after Plaintiff moved for
an order granting summary judgment on her Complaint ("2018 Order"). The Court held
that a Notice of Intent to Foreclose sent to the Borrower in 2008 accelerated the
mortgage, that the statute of limitations had expired, and therefore the 2018 action was
untimely. In addition to the foregoing, By Decision and Order dated November 19, 2018
and entered on March 27, 2019, the 2018 action was consolidated with the instant action
and dismissed on the ground that the 2018 action was a nullity given that the Court
cancelled and discharged the subject mortgage for the premises ("2019 Order"). On July
19, 2023, after Defendant appealed the 2018 Order, the Appellate Division, Second
Department reversed the 2018 Order and denied Plaintiffs motion seeking summary
judgment on her Complaint on the ground that the Notice of Intent to Foreclose was not a
clear and unequivocal intent to foreclose the mortgage (see Sansone v North Shore
Investors Realty Group, LLC, 218 Ad3d 698 [2d Dept 2023]). By Order dated August 13,
2024 and entered on August 19, 2024, Defendant's motion to vacate the 2019 Order and
restore the 2018 action was granted.
Plaintiff now moves again for an order pursuant to CPLR 3212 granting summary
judgment in her favor as to the Complaint insofar as asserted against Defendant based
upon the premise that the time to commence a foreclosure action has expired. Defendant
opposes the motion.
3 of 7 [* 3] FILED: NASSAU COUNTY CLERK 06/05/2025 12:04 PM INDEX NO. INDEX NO. 611543/2017 611543/2017 DOC. NO. NYSCEF DOC. NO. 179 NYSCEF: 06/05/2025 RECEIVED NYSCEF: 06/05/2025
"[T]he proponent of a summary judgment motion must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact. Failure to make such prima facie
showing requires a denial of the motion, regardless of the sufficiency of the opposing
papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "Once the movant has
demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the
party opposing the motion to produce evidentiary proof, in admissible form, sufficient to
establish the existence of material issues of fact which require a trial of the action"
(Zuckerman v New York, 49 NY2d 557 [1980]).
"[P]ursuant to RPAPL 1501(4), a person having an estate or an interest in real
property subject to a mortgage can seek to cancel and discharge that encumbrance where
the period allowed by the applicable statute of limitations for the commencement of an
action to foreclose the mortgage has expired, provided that the mortgagee or its successor
was not in possession of the subject real property at the time the action to cancel and
discharge the mortgage was commenced." (BH 263, LLC v Bayview Loan Servicing, LLC,
175 AD3d 1375, 1376 [2d Dept 2019][internal citations and quotations omitted]).
"Pursuant to CPLR §213(4), an action to foreclose a mortgage is subject to a
six-year statute of limitations. Even if the mortgage is payable in installments, once a
mortgage debt is accelerated, the entire amount is due and payable, and the statute of
limitations begins to run on the entire debt. Acceleration occurs, inter alia, by the
commencement of a foreclosure action wherein the plaintiff elects in the complaint to call
4 of 7 [* 4] FILED: NASSAU COUNTY CLERK 06/05/2025 12:04 PM INDEX NO. INDEX NO.
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Sansone v North Shore Invs. Realty Group, LLC 2025 NY Slip Op 31976(U) June 3, 2025 Supreme Court, Nassau County Docket Number: Index No. 611543/2017 Judge: Gregg Roth 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. FILED: NASSAU COUNTY CLERK 06/05/2025 12:04 PM INDEX NO. INDEX NO. 611543/2017 611543/2017 DOC. NO. NYSCEF DOC. NO. 179 NYSCEF: 06/05/2025 RECEIVED NYSCEF: 06/05/2025
SUPREME COURT - STATE OF NEW YORK
PRESENT: Honorable Gregg Roth Justice of the Supreme Court
X ----------------- ELYSE M. SANSONE, TRIAL/IAS, PART 29 NASSAU COUNTY Plaintiff(s), -against- Index No.: 611543/2017
Motion Seq No.: 004 NORTH SHORE INVESTORS REALTY GROUP, LLC AND NASSAU COUNTY CLERK, Motion Submitted: 4/7/25
Defendant( s).
-----------------X The following papers read on this motion:
Notice of Motion/Supporting Exhibits ............................................. X
Upon the foregoing e-filed papers, Plaintiff Elyse M. Sansone's ("Plaintiff')
motion seeking an order pursuant to CPLR 3212 granting summary judgment in her favor
as to her Complaint insofar as asserted against Defendant North Shore Investors Realty
Group, LLC ("Defendant") and pursuant to CPLR 3025(c) amending the pleadings to
conform to the evidence determined as set forth hereinafter.
Plaintiff commenced this action pursuant to RP APL 1501 (4) to cancel and
discharge of record a mortgage encumbering a property located at 24 North Strathmore
1 of 7 [* 1] FILED: NASSAU COUNTY CLERK 06/05/2025 12:04 PM INDEX NO. INDEX NO. 611543/2017 611543/2017 DOC. NO. NYSCEF DOC. NO. 179 NYSCEF: 06/05/2025 RECEIVED NYSCEF: 06/05/2025
Street, Valley Stream, New York ("the premises"). On August 3, 2007, Richard Sansone
("Borrower"), Plaintiffs husband, executed a mortgage in the sum of $412,000 in favor of
Mortgage Electronic Registration Systems, Inc. ("MERS ") as nominee for Resmae
Mortgage Corporation ("Resmae") as security for repayment of a note. Borrower
defaulted under the terms of the mortgage on or about July 2008. The mortgage was then
assigned to Wells Fargo Bank ("Wells Fargo") as Trustee for the Resmae Mortgage.
Wells Fargo commenced a foreclosure action on June 19, 2009 titled Wells Fargo Bank,
NA as Trustee for the Resmae Mortgage Loan Trust Mortgage Pass-Through Certificates,
Series 2007-1 v Rick Sansone, Index No. 11942/2009 ("2009 action"). The Borrower died
on August 11, 2009 and Plaintiff, as his sole heir, inherited ownership to the premises.
Subsequently, on February 3, 2012, the 2009 action was discontinued pursuant to a
Stipulation of Discontinuance.
On or about May 2011, the mortgage was assigned to Kondaur Capital
Corporation ("Kondaur"). On March 21, 2012, Kondaur commenced a second foreclosure
action titled Kondour Capital Contribution v Jeffrey E Deluca, et. al., under Index No.
3649/2012 ("2012 action"). The mortgage was assigned to Defendant on January 14,
2014. On June 14, 2016, the 2012 action was voluntary discontinued by Kondour. On
October 27, 2017, Plaintiff commenced the instant action seeking to cancel and discharge
of record the mortgage on the premises on the ground that the statute of limitations within
which to commence an action to foreclose a mortgage had expired. On April 18, 2018,
Defendant commenced a third foreclosure action titled North Shore Investors Realty
2 of 7 [* 2] FILED: NASSAU COUNTY CLERK 06/05/2025 12:04 PM INDEX NO. INDEX NO. 611543/2017 611543/2017 DOC. NO. NYSCEF DOC. NO. 179 NYSCEF: 06/05/2025 RECEIVED NYSCEF: 06/05/2025
Group, II, LLC v Jeffrey E. Deluca, et. al., under Index No 000443/2018 ("2018 action").
By Decision and Order dated April 23, 2018 and entered April 25, 2018, this Court
cancelled and discharged of record the mortgage on the premises after Plaintiff moved for
an order granting summary judgment on her Complaint ("2018 Order"). The Court held
that a Notice of Intent to Foreclose sent to the Borrower in 2008 accelerated the
mortgage, that the statute of limitations had expired, and therefore the 2018 action was
untimely. In addition to the foregoing, By Decision and Order dated November 19, 2018
and entered on March 27, 2019, the 2018 action was consolidated with the instant action
and dismissed on the ground that the 2018 action was a nullity given that the Court
cancelled and discharged the subject mortgage for the premises ("2019 Order"). On July
19, 2023, after Defendant appealed the 2018 Order, the Appellate Division, Second
Department reversed the 2018 Order and denied Plaintiffs motion seeking summary
judgment on her Complaint on the ground that the Notice of Intent to Foreclose was not a
clear and unequivocal intent to foreclose the mortgage (see Sansone v North Shore
Investors Realty Group, LLC, 218 Ad3d 698 [2d Dept 2023]). By Order dated August 13,
2024 and entered on August 19, 2024, Defendant's motion to vacate the 2019 Order and
restore the 2018 action was granted.
Plaintiff now moves again for an order pursuant to CPLR 3212 granting summary
judgment in her favor as to the Complaint insofar as asserted against Defendant based
upon the premise that the time to commence a foreclosure action has expired. Defendant
opposes the motion.
3 of 7 [* 3] FILED: NASSAU COUNTY CLERK 06/05/2025 12:04 PM INDEX NO. INDEX NO. 611543/2017 611543/2017 DOC. NO. NYSCEF DOC. NO. 179 NYSCEF: 06/05/2025 RECEIVED NYSCEF: 06/05/2025
"[T]he proponent of a summary judgment motion must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact. Failure to make such prima facie
showing requires a denial of the motion, regardless of the sufficiency of the opposing
papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "Once the movant has
demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the
party opposing the motion to produce evidentiary proof, in admissible form, sufficient to
establish the existence of material issues of fact which require a trial of the action"
(Zuckerman v New York, 49 NY2d 557 [1980]).
"[P]ursuant to RPAPL 1501(4), a person having an estate or an interest in real
property subject to a mortgage can seek to cancel and discharge that encumbrance where
the period allowed by the applicable statute of limitations for the commencement of an
action to foreclose the mortgage has expired, provided that the mortgagee or its successor
was not in possession of the subject real property at the time the action to cancel and
discharge the mortgage was commenced." (BH 263, LLC v Bayview Loan Servicing, LLC,
175 AD3d 1375, 1376 [2d Dept 2019][internal citations and quotations omitted]).
"Pursuant to CPLR §213(4), an action to foreclose a mortgage is subject to a
six-year statute of limitations. Even if the mortgage is payable in installments, once a
mortgage debt is accelerated, the entire amount is due and payable, and the statute of
limitations begins to run on the entire debt. Acceleration occurs, inter alia, by the
commencement of a foreclosure action wherein the plaintiff elects in the complaint to call
4 of 7 [* 4] FILED: NASSAU COUNTY CLERK 06/05/2025 12:04 PM INDEX NO. INDEX NO. 611543/2017 611543/2017 DOC. NO. NYSCEF DOC. NO. 179 NYSCEF: 06/05/2025 RECEIVED NYSCEF: 06/05/2025
due the entire amount secured by the mortgage. The recently enacted Foreclosure Abuse
Prevention Act [hereinafter FAP A] amended CPLR 213(4) by adding, among other
things, paragraph (a), which provides that in any action on an instrument described under
this subdivision, if the statute of limitations is raised as a defense, and if that defense is
based on a claim that the instrument at issue was accelerated prior to, or by way of
commencement of a prior action, a plaintiff shall be estopped from asserting that the
instrument was not validly accelerated, unless the prior action was dismissed based on an
expressed judicial determination, made upon a timely interposed defense, that the
instrument was not validly accelerated" (GMAT Legal Title Trust 2014-1 v Kator, 213
AD3d 915, 917 [2d Dept 2023] [internal citations and quotations omitted]).
Plaintiff argues that the 2009 action accelerated the subject mortgage and the
applicable statute of limitations has expired, with more than six years having elapsed
since the date of acceleration and the commencement of the 2018 action. Plaintiff argues
that although the 2009 action and 2012 action were voluntary discontinued, the 2018
action is time-barred pursuant to the Foreclosure Abuse Prevention Act ("FAPA").
Plaintiff argues that the cancelling and discharging the mortgage for the premises is
warranted pursuant to RPAPL 1501(4).
In opposition, Defendant argues that Plaintiffs successive motion for summary
judgment is improper as well as premature given the fact that the 2018 action is still
pending. Defendant argues that Plaintiff has failed to establish that the statute of
limitations has expired by failing to submit admissible evidence. According to
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Defendant, the 2009 Complaint, submitted by Plaintiff, does not mention the date of the
mortgage being foreclosed and therefore there is a question of fact as to whether the
subject mortgage was accelerated. In addition, Defendant argues that the retroactive
application of FAP A is unconstitutional and further that the 2018 action is timely.
Here, Plaintiff has established her entitlement to judgment as a matter of law
warranting summary judgment on her Complaint seeking to cancel and discharge of
record the subject mortgage on the premises. Plaintiff has demonstrated that the 2009
action accelerated the mortgage and therefore the statute of limitations expired in 2015
pursuant to FAPA. (see Deutsche Bank Nat'! Tr. Co. v Gordon, 179 AD3d 770 [2d Dept
2020]; see also Wilmington Sav. Fund Socy, FSB v Rosenbaum, 197 AD3d 1132 [2d
Dept 2021 ]). In opposition, Defendant has failed to raise a triable issue of fact. Contrary
to Defendant's contentions, there is no merit to the arguments challenging FAP A's
retroactive application and constitutionality (see HSBC Bank USA v Lem, 2025 NY Slip
Op 01357 [2d Dept 2025]; see also Deutsche Bank Natl. Trust Co. v Zak, 2025 NY Slip
Op 00947 [2d Dept 2025]). Defendant's remaining contentions are without merit.
Accordingly, Plaintiff's motion is granted.
Accordingly, it is hereby
ORDERED, that Plaintiff's motion is hereby GRANTED; and it is further
ORDERED, that the subject mortgage shall be cancelled and discharged of
record. Plaintiff shall submit a proposed order on notice; and it is further
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ORDERED, that all requests for relief not addressed herein is DENIED.
The court has considered the parties' remaining arguments and finds them to be
without merit, This shall constitute the Decision and Order of the Court.
Dated: June 3, 2025 Mineola, N.Y.
jfo Hon. Gregg Roth, J.S.C.
ENTERED Jun 05 2025 NASSAU COUNTY COUNTY CLERK"S OFFICE
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