Bohemia, NY
Foreclosure Lawyer at Bohemia, NY
Practice Areas: Foreclosure
OUTCOME: Statute of Limitations Foreclosure Dismissal
The following papers numbered 1 to 4 read on this motion by defendants to dismiss Plaintiff's complaint. PAPERS NUMBERED Notice of Motion-Affidavits-Exhibits 1 - 4 Answering Affidavits-Exhibits Re ... plying Affidavits Upon the foregoing papers it is ordered that this motion is granted without opposition. The complaint is dismissed.
OUTCOME: Case dismissed Statute of Limitation Expired, Mortgage Canceled, Attorney fees awarded to borrower
In an action to foreclose a mortgage, the defendant Carol A. Gordon appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 9, 2016. The order, insofar as appe ... aled from, denied those branches of that defendant’s motion which were for summary judgment dismissing the complaint insofar as asserted against her and for summary judgment on her counterclaims to cancel and discharge the subject mortgage pursuant to RPAPL 1501(4) and for an award of attorneys’ fees and expenses pursuant to Real Property Law § 282, and granted those branches of the plaintiff’s cross motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike her answer, affirmative defense, and counterclaims, and for an order of reference. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion of the defendant Carol A. Gordon which were for summary judgment dismissing the complaint insofar as asserted against her and for summary judgment on her counterclaims to cancel and discharge the subject mortgage pursuant to RPAPL 1501(4) and for an award of attorneys’ fees and expenses pursuant to Real Property Law § 282 are granted, those branches of the plaintiff’s cross motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike her answer, affirmative defense, and counterclaims, and for an order of reference are denied, and the matter is remitted to the Supreme Court, Nassau County, for a hearing, to be held forthwith, to determine the amount of attorneys’ fees and expenses to be awarded to the defendant Carol A. Gordon pursuant to Real Property Law § 282, and thereafter for the entry of a judgment
OUTCOME: Mortgage Foreclosure Dismissed, Statute of Limitations Expired, Mortgage Uninforcable, Attorney fees awarded to borrower.
The Court finds that the limitations period began to run on June 23, 2019, which was the date the defendant was obligated to cure her default by pursuant to the terms of the Acceleration Notice. Conseq ... uently, this action is time-barred pursuant to CPLR 213(4), since it was commenced on December 7, 2018, more than six years after the limitations period accrued. Accordingly, the Court grants the branch of the defendant's cross-motion seeking summary judgment and dismissing the Complaint with prejudice, and denies the branch of the plaintiff's motion seeking summary judgment, and striking and dismissing the defendant's Answer. The remaining branches of the plaintiffs motion seeking a default judgment against the non-answering defendants, and to amend the caption is granted without opposition. The remaining branch of the cross-motion seeking reasonable attorneys' fees, costs, and disbursements pursuant to RPL 282(1) is granted. Where, as here, the defendant/mortagagor is the prevailing party in a foreclosure action, she is entitled to an award of attorneys' fees and expenses for the successful defense of the action pursuant to RPL 282(1) (21st Mtge. Corp. v Nweke, 165 AD3d 616 [2d Dept, 2018]). The Court finds that the plaintiff's claims that defendant is not entitled to attorneys' fees and expenses, because the it has not received a mortgage payment in over six years and has been paying the taxes and insurance on the Mortgage Premises is without merit under the terms of the statute. Accordingly, a hearing shall be held at a later date, to be scheduled by the Court, to determine the amount of reasonable attorneys' fees, costs, and disbursements defendant is entitled to pursuant to RPL 282(1).
OUTCOME: Summary Judgment Successfully Reversed
In an action to foreclose a mortgage, the defendant Donna M. Starr appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated October 11, 2016. The order, insofar as appeal ... ed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike her answer, and for an order of reference, and denied that branch of her cross motion which was for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff failed to comply with RPAPL 1304 and 1306. ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Donna M. Starr, to strike her answer, and for an order of reference, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Donna M. Starr payable by the plaintiff. The plaintiff commenced this action against, among others, the defendant Donna M. Starr (hereinafter the defendant), to foreclose a mortgage encumbering residential real property. The defendant answered. In June 2016, the plaintiff moved, inter alia, for summary judgment on the complaint, to strike the defendant’s answer, and for an order of reference. The defendant cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff failed to comply with RPAPL 1304 and 1306. In an order dated October 11, 2016, the Supreme Court granted the plaintiff’s motion, denied the defendant’s cross motion, and appointed a referee to compute the amount due under the loan. The defendant appeals.
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