U.S. Bank Trust, N.A. v. Frankfurter , 2020 NY Slip Op 06168 ( 2020 )

U.S. Bank Trust, N.A. v Frankfurter (2020 NY Slip Op 06168)

U.S. Bank Trust, N.A. v Frankfurter

2020 NY Slip Op 06168

Decided on October 28, 2020

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 28, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.

2019-02709
(Index No. 512488/18)

[*1]U.S. Bank Trust, N.A., etc., respondent,

v

Jacob Frankfurter, appellant, et al., defendants.

David Stein (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Christen Giannaros], of counsel), for appellant.

Day Pitney LLP, New York, NY (Michelle L. Moshe and Alfred W. J. Marks of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jacob Frankfurter appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated January 3, 2019. The order denied that defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred.

ORDERED that the order is affirmed, with costs.

In this action to foreclose a mortgage, the defendant Jacob Frankfurter (hereinafter the defendant) moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred. In support of his motion, the defendant argued that a letter dated April 18, 2012, sent to him by the plaintiff's predecessor in interest, accelerated the mortgage debt, rendering this foreclosure action, which was commenced in June 2018, time-barred. In the order appealed from, the Supreme Court denied the defendant's motion. The defendant appeals.

"Where the holder of the note elects to accelerate the mortgage debt, notice to the borrower must be clear and unequivocal" (Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 867 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 983). Here, contrary to the defendant's contention, the letter dated April 18, 2012, did not contain language clearly and unequivocally accelerating the mortgage debt (cf. Bank of N.Y. Mellon v Maldonado, 170 AD3d 1099, 1101). Accordingly, we agree with the Supreme Court's determination denying the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred.

LEVENTHAL, J.P., ROMAN, COHEN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court