Preview
FILED: KINGS COUNTY CLERK 07/05/2023
08/30/2019 02:15
11:23 PM
AM INDEX
INDEX
NO.
NO.
524203/2017
8354/2010
NYSCEF DOC. NO. 18
74 RECEIVED NYSCEF: 07/05/2023
08/30/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------ --------------------------------------------X Index No. 524203/2017
FEDERAL NATIONAL MORTGAGE ASSOCIATION
Plaintiff,
-against- NOTICEOF ENTRY
TRENIA JOHNSON, NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD,
NEW YORK CITY TRANSITADJUDICATION
#1" #10,"
BUREAU, "JOHN DOE to "JOHN DOE
the last 10 names being fictitious and unknown to plaintiff,
the persons or parties intended being the persons or parties,
if any, having or claiming an interest in or lien upon the
mortgaged premises described in the complaint,
Defendants.
---------------------- X
PLEASE TAKE NOTICE that the within is a true copy of a DECISION AND
30th
ORDER duly entered in the Office of the Clerk of the within named Court on the day Of
August 2019.
Dated: August 30, 2019
Kew Gardens, New York
Yours, etc.
SHIRYAK BOWMAN ANDERSON GILL &
KADOCHNIKOV LLP
By: Btzalel Hirschhorn, Esq.
80-02 Kew Gardens Road, Suite 600
Kew Gardens, New York 11415
Tel: (718) 263-6800
-1-
1 of 6
.. ...-.-
FILED: . KINGS
......- -,., -...
COUNTY -....
. CLERK - -,
07/05/2023
08/30/2019
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02:15 AM INDEX
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NO.
NO.
524203/2017
8354/2010
NYSCEF DOC.
NYSCEF DOC. NO.
NO. 18
73
74 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 08/29/2015
08/30/2019
07/05/2023
At an IAS Term, Part FRP-1, of the Supreme Court
of the State of New York, held in and for the
,.. .., County of Kings, at the Courthouse, at 360 Adams
2 I an tu 38 13d'
20 9 AlJG New
Street, Brooklyn, York, on the day of
August 2019.
P R E S E N T:
HON. NOACH DEAR,
J.S.C.
Index No.: 524203/17
FEDERAL NAT'L.
Plaintiff, DECISION AND ORDER
-against-
TRENIA JOHNSON et al,
Defendant,
x
Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this
Motion:
Papers Numbered
Motion (MS 1) 1
Opposition/Cross (MS 2) 2
Reply/Opp to Cross 3 ,,
Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:
Plaintiff moves for summary judgment and an order of reference. Defendant opposes and
cross-moves for dismissal or leave to amend her answer (and then dismissal).
The prior action is disposed and it appears that Plaintiff's time to appeal therefrom has
expired.
"
A motion to amend should be granted unless the proposed amended pleading is palpably
insufficient or patently devoid of merit, or where the delay in seeking the amendment would cause
surprise"
prejudice or (Lucido v. Mancuso, 49 A.D.3d 220 [2d Dept 2008]). Herein, the proposed
amendment'
is neither clearly meritless nor has Plaintiff demonstrated potential prejudice.
¹
Though Defendant failed to proffer a proposed amended pleading as required by CPLR
3025[b], it is clear from her moving papers that she is seeking to add an affirmative defense that
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NYSCEF
NYSCEF DOC. NO.
DOC. NO. 18
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74 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 08/29/2015
08/30/2019
07/05/2023
"The law is well settled that with respect to a mortgage payable in installments, there are
'separate causes of action for each installment accrued, and the Statute of Limitations [begins] to run,
on the date each installment [becomes] due unless the mortgage debt is accelerated. Once the
mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on
debt"
the entire mortgage (Loiacono v. Goldberg, 240 A.D.2d 476, 477 [2d Dept. 1997]). A prior
action was commenced on 4/2/10, accelerating the lien. The instant action was not filed until
12/15/17, more than seven years later. As such, Defendant met her initial burden of showing that the
instant action is untimely. The burden then shifted to Plaintiff to demonstrate that the prior action
was not an acceleration or any other basis for the instant action to be timely (U.S. Bank Nat. Ass'n v.
Martin, 144 A.D.3d 891 [2d Dept 2016]).
Short payoff offers are not re-affirmations of the debt, merely offering to settle for a lesser
amount (see, similarly, Karpa Realty Group, LLC v. Deutsche Bank National Trust Company, 164
AD3d 886 [2d Dept 2018] ; Yadegar v. Deutsche Bank National Trust Company, 164 A.D.3d 945 [2d
Dept 2018]; see also, U.S. Bank, National Association v. Kess, 159 AD3d 767, 768 [2d Dept 2018];
Sichol v. Crocker, 177 A.D.2d 842, 843 [3d Dept 1991]).
Motion denied. Cross-motion granted. Case dismissed.
ENTER:
Ho . oach Dear, J.S.C.
C3
the instant action is untimely due to the 2010 acceleration.
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ATTORNEY CERTIFICATION
I, Btzalel Hirschhorn, Esq., hereby certify, under penalty of perjury, and as an officer of
the court, that to the best of my knowledge, information and belief, formed after an inquiry
reasonably under the circumstances, the presentation of the papers or the contentions herein are
not frivolous as defined in 22 NYCRR Section 130-1.1(c).
Dated: August 30, 2019
Kew Gardens, New York
,
Btza 1 Hirschhorn, Esq.
- 2 -
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AFFIDAVIT OF SERVICE
STATE OF NEW YORK }
} SS:
COUNTY OF QUEENS }
.
I, Chelsi Persaud, being sworn, say:
I am not a party to the action, am over 18 years of age and reside in Queens, New York.
30th
On August 2019, I served the within NOTICE OF ENTRY, delivering a true copy
thereof enclosed in a post-paid wrapper, under the exclusive care and custody of United States
Postal Service within New York State, addressed to the following person at the last known
address set forth after each name by first class mail:
MCCABE WEISBERG & CONWAY LLC
ATTN: MELISSA A. SPOSATO, ESQ.
145 HUGUENOT STREET, SUITE 210
NEW ROCHELLE, NEW YORK 10801
Chelsi Persaud
Sworn to before me this
30th
day of Au ust 2019
OTARY PUBLIC
- --
ANDREASE. CHRISTOU
Notary Public - State of New York
No. 01CH6358331
Qualified in Schenectady
County
My Comm. Expires May 8, 2021
-3-
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NYSCEF DOC. NO. 18
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS INDEX NO52403/2017
FEDERAL NATIONAL MORTGAGE ASSOCIATION
Plaintiff,
-against-
TRENIA JOHNSON et. al,
Defendant.
NOTICE OF ENTRY
Shiryak, Bowman, Anderson, Gill & Kade-chnikov LLP
Attorney(s) for DEFENDANT
Office and Post Office Address, Telephone
80-02 Queens Boulevard
Suite 600
Kew Gardens, New York 11415
(718) 263-6800
Fax (718) 520-9401
TO Service of a copy of the within
is hereby ads'tici
Dated:............................................
Attorney(s) for
PLEASE TAKE NOTICE:
/_-
NOTICE OF ENTRY
that the within is a (certified) true copy of a
duly entered in the office of the clerk of the within named court on
/ / NOTICE OF SETTLEMENT
that an order of which the within is a true copy
will be preseñted for settlement to the HON. one of the judges of the
within named Court, at
2019 at M.
Dated,
Yours, etc.
Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP
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Preview
FILED: KINGS COUNTY CLERK 07/05/2023 08/30/2019 02:15 11:23 PM AM INDEX INDEX NO. NO. 524203/2017 8354/2010 NYSCEF DOC. NO. 18 74 RECEIVED NYSCEF: 07/05/2023 08/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------ --------------------------------------------X Index No. 524203/2017 FEDERAL NATIONAL MORTGAGE ASSOCIATION Plaintiff, -against- NOTICEOF ENTRY TRENIA JOHNSON, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSITADJUDICATION #1" #10," BUREAU, "JOHN DOE to "JOHN DOE the last 10 names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants. ---------------------- X PLEASE TAKE NOTICE that the within is a true copy of a DECISION AND 30th ORDER duly entered in the Office of the Clerk of the within named Court on the day Of August 2019. Dated: August 30, 2019 Kew Gardens, New York Yours, etc. SHIRYAK BOWMAN ANDERSON GILL & KADOCHNIKOV LLP By: Btzalel Hirschhorn, Esq. 80-02 Kew Gardens Road, Suite 600 Kew Gardens, New York 11415 Tel: (718) 263-6800 -1- 1 of 6 .. ...-.- FILED: . KINGS ......- -,., -... COUNTY -.... . CLERK - -, 07/05/2023 08/30/2019 ......, ...-... 11:23 PM 02:15 AM INDEX INDEX NO. NO. 524203/2017 8354/2010 NYSCEF DOC. NYSCEF DOC. NO. NO. 18 73 74 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/29/2015 08/30/2019 07/05/2023 At an IAS Term, Part FRP-1, of the Supreme Court of the State of New York, held in and for the ,.. .., County of Kings, at the Courthouse, at 360 Adams 2 I an tu 38 13d' 20 9 AlJG New Street, Brooklyn, York, on the day of August 2019. P R E S E N T: HON. NOACH DEAR, J.S.C. Index No.: 524203/17 FEDERAL NAT'L. Plaintiff, DECISION AND ORDER -against- TRENIA JOHNSON et al, Defendant, x Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion: Papers Numbered Motion (MS 1) 1 Opposition/Cross (MS 2) 2 Reply/Opp to Cross 3 ,, Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: Plaintiff moves for summary judgment and an order of reference. Defendant opposes and cross-moves for dismissal or leave to amend her answer (and then dismissal). The prior action is disposed and it appears that Plaintiff's time to appeal therefrom has expired. " A motion to amend should be granted unless the proposed amended pleading is palpably insufficient or patently devoid of merit, or where the delay in seeking the amendment would cause surprise" prejudice or (Lucido v. Mancuso, 49 A.D.3d 220 [2d Dept 2008]). Herein, the proposed amendment' is neither clearly meritless nor has Plaintiff demonstrated potential prejudice. ¹ Though Defendant failed to proffer a proposed amended pleading as required by CPLR 3025[b], it is clear from her moving papers that she is seeking to add an affirmative defense that 1 of 2 2 of 6 FILED: KINGS COUNTY CLERK 07/05/2023 08/30/2019 02:15 11:23 PM AM INDEX INDEX NO. NO. 524203/2017 8354/2010 NYSCEF NYSCEF DOC. NO. DOC. NO. 18 73 74 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/29/2015 08/30/2019 07/05/2023 "The law is well settled that with respect to a mortgage payable in installments, there are 'separate causes of action for each installment accrued, and the Statute of Limitations [begins] to run, on the date each installment [becomes] due unless the mortgage debt is accelerated. Once the mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on debt" the entire mortgage (Loiacono v. Goldberg, 240 A.D.2d 476, 477 [2d Dept. 1997]). A prior action was commenced on 4/2/10, accelerating the lien. The instant action was not filed until 12/15/17, more than seven years later. As such, Defendant met her initial burden of showing that the instant action is untimely. The burden then shifted to Plaintiff to demonstrate that the prior action was not an acceleration or any other basis for the instant action to be timely (U.S. Bank Nat. Ass'n v. Martin, 144 A.D.3d 891 [2d Dept 2016]). Short payoff offers are not re-affirmations of the debt, merely offering to settle for a lesser amount (see, similarly, Karpa Realty Group, LLC v. Deutsche Bank National Trust Company, 164 AD3d 886 [2d Dept 2018] ; Yadegar v. Deutsche Bank National Trust Company, 164 A.D.3d 945 [2d Dept 2018]; see also, U.S. Bank, National Association v. Kess, 159 AD3d 767, 768 [2d Dept 2018]; Sichol v. Crocker, 177 A.D.2d 842, 843 [3d Dept 1991]). Motion denied. Cross-motion granted. Case dismissed. ENTER: Ho . oach Dear, J.S.C. C3 the instant action is untimely due to the 2010 acceleration. 2 of 2 3 of 6 FILED: KINGS COUNTY CLERK 07/05/2023 08/30/2019 02:15 11:23 PM AM INDEX INDEX NO. NO. 524203/2017 8354/2010 NYSCEF DOC. NO. 18 74 RECEIVED NYSCEF: 07/05/2023 08/30/2019 ATTORNEY CERTIFICATION I, Btzalel Hirschhorn, Esq., hereby certify, under penalty of perjury, and as an officer of the court, that to the best of my knowledge, information and belief, formed after an inquiry reasonably under the circumstances, the presentation of the papers or the contentions herein are not frivolous as defined in 22 NYCRR Section 130-1.1(c). Dated: August 30, 2019 Kew Gardens, New York , Btza 1 Hirschhorn, Esq. - 2 - 4 of 6 FILED: KINGS COUNTY CLERK 07/05/2023 08/30/2019 02:15 11:23 PM AM INDEX INDEX NO. NO. 524203/2017 8354/2010 NYSCEF DOC. NO. 18 74 RECEIVED NYSCEF: 07/05/2023 08/30/2019 AFFIDAVIT OF SERVICE STATE OF NEW YORK } } SS: COUNTY OF QUEENS } . I, Chelsi Persaud, being sworn, say: I am not a party to the action, am over 18 years of age and reside in Queens, New York. 30th On August 2019, I served the within NOTICE OF ENTRY, delivering a true copy thereof enclosed in a post-paid wrapper, under the exclusive care and custody of United States Postal Service within New York State, addressed to the following person at the last known address set forth after each name by first class mail: MCCABE WEISBERG & CONWAY LLC ATTN: MELISSA A. SPOSATO, ESQ. 145 HUGUENOT STREET, SUITE 210 NEW ROCHELLE, NEW YORK 10801 Chelsi Persaud Sworn to before me this 30th day of Au ust 2019 OTARY PUBLIC - -- ANDREASE. CHRISTOU Notary Public - State of New York No. 01CH6358331 Qualified in Schenectady County My Comm. Expires May 8, 2021 -3- 5 of 6 FILED: KINGS COUNTY CLERK 07/05/2023 08/30/2019 02:15 11:23 PM AM INDEX INDEX NO. NO. 524203/2017 8354/2010 NYSCEF DOC. NO. 18 74 RECEIVED NYSCEF: 07/05/2023 08/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS INDEX NO52403/2017 FEDERAL NATIONAL MORTGAGE ASSOCIATION Plaintiff, -against- TRENIA JOHNSON et. al, Defendant. NOTICE OF ENTRY Shiryak, Bowman, Anderson, Gill & Kade-chnikov LLP Attorney(s) for DEFENDANT Office and Post Office Address, Telephone 80-02 Queens Boulevard Suite 600 Kew Gardens, New York 11415 (718) 263-6800 Fax (718) 520-9401 TO Service of a copy of the within is hereby ads'tici Dated:............................................ Attorney(s) for PLEASE TAKE NOTICE: /_- NOTICE OF ENTRY that the within is a (certified) true copy of a duly entered in the office of the clerk of the within named court on / / NOTICE OF SETTLEMENT that an order of which the within is a true copy will be preseñted for settlement to the HON. one of the judges of the within named Court, at 2019 at M. Dated, Yours, etc. Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP 6 of 6