Big Chief Lewis, Inc. v. Stim , 99 A.D.2d 501 ( 1984 )

In an action to foreclose a mortgage, defendants appeal from an order of the Supreme Court, Nassau County (Levitt, J.), dated March 23, 1983, which denied their motion for summary judgment dismissing the action as time barred. Order reversed, on the law, without costs or disbursements, and defendants’ motion for summary judgment dismissing the action granted. The mortgage in this case was due and payable on December 31,1967. The Statute of Limitations expired six years later, on December 31,1973 (CPLR 213, subd 4). Although plaintiff asserts that two payments were made in 1981 toward the outstanding interest, there is no claim or evidence that these payments were made by defendants or their predecessor in interest. There is also no claim that defendants or their predecessor ever made any payments of interest or principal on the mortgage. Any payments made by a third party in this case could not, as a matter of law, have revived defendants’ obligation under the mortgage (see General Obligations Law, § 17-107; see, also, Roth v Michelson, 55 NY2d 278). Accordingly, their motion for summary judgment must be granted, and the action dismissed. Mollen, P. J., Lazer, Thompson and Boyers, JJ., concur.