| Mills v Deutsche Bank Natl. Trust Co. |
| 2021 NY Slip Op 02384 |
| Decided on April 21, 2021 |
| 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 April 21, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, A.P.J.
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON
LINDA CHRISTOPHER, JJ.
2020-00232
(Index No. 518653/17)
v
Deutsche Bank National Trust Company, etc., appellant.
Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (Gregg L. Verrilli of counsel), for appellant.
LeNoir Law Firm, PLLC, New York, NY (S. John LeNoir of counsel), for respondent.
DECISION & ORDER
In an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the defendant appeals from an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated November 27, 2019. The order, insofar as appealed from, denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
On September 27, 2017, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage on the ground that the six-year period for the commencement of an action to foreclose the subject mortgage had expired (see CPLR 213[4]). The Supreme Court, inter alia, denied the defendant's motion for summary judgment dismissing the complaint. The defendant appeals.
On its motion, the defendant demonstrated its prima facie entitlement to judgment as a matter of law. The defendant demonstrated that any acceleration of the subject mortgage debt that occurred in February 2011 by the filing of the complaint in a prior action to foreclose the subject mortgage was revoked by the voluntary discontinuance of that foreclosure action (see Freedom Mtge. Corp. v Engel, ___ NY3d ___, 2021 NY Slip Op 01090). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, we reverse the order insofar as appealed from and grant the defendant's motion for summary judgment dismissing the complaint.
In light of our determination, we need not reach the defendant's remaining contention.
MASTRO, A.P.J., HINDS-RADIX, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court