Preview
FILED: SUFFOLK COUNTY CLERK 04/25/2024 03:54 PM INDEX NO. 608388/2024
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/25/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
THE MONEY SOURCE, INC.,
Plaintiff,
-against- INDEX NO. 608388/2024
253H, LLC; RASHANDA Y. GAMBLE A/K/A AFFIRMATION IN SUPPORT
RASHANDA YVETTE GAMBLE, AS OF DEFENDANT’S MOTION
ADMINISTRATRIX OF THE ESTATE OF TO DISMISS
DAMON GAMBLE; RASHANDA Y. GAMBLE
A/K/A RASHANDA YVETTE GAMBLE, AS
HEIR AND DISTRIBUTEE OF THE ESTATE
OF DAMON GAMBLE; HEIRS AND
DISTRIBUTEES OF THE ESTATE OF
DAMON GAMBLE; SECRETARY OF
HOUSING AND URBAN DEVELOPMENT;
PEOPLE OF THE STATE OF NEW YORK;
NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE; UNITED
STATES OF AMERICA,
"JOHN DOE #1" through "JOHN DOE #12," the
last twelve names being fictitious and unknown to
plaintiff, the persons or parties intended being the
tenants, occupants, persons or corporations, if
any, having or claiming an interest in or lien upon
the premises, described in the complaint,
Defendants.
Matthew K. Tannenbaum, Esq., an attorney duly admitted to the practice of law in the
State of New York affirms the following under penalty of perjury:
1. I am the attorney for the defendant 253H, LLC, (“Defendant”), in the within action,
and I am fully familiar with the facts and circumstances of this matter.
2. I make this affirmation in support of Defendant’s motion seeking an order (i)
dismissing this action as time-barred pursuant to CPLR § 3211 (a) (5); and (ii) granting such other
and further relief as the Court may deem just and proper.
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STATEMENT OF RELATIVE FACTS AND PROCEDURAL HISTORY
3. This is Plaintiff’s third action brought to foreclose a Mortgage secured against the
premises known as 253 Hampton Avenue, East Patchogue, NY 11772.
4. On or about February 16, 2018, Plaintiff accelerated the terms of the mortgage loan
by commencing an action under index number 603220/2018 (the “2018 Action”), and declaring
the mortgage accelerated therein. A copy of the 2018 foreclosure complaint is annexed hereto as
Exhibit “A”.
5. On or about July 14, 2023, Plaintiff voluntarily discontinued the 2018 Action.
Exhibit “B”. The discontinuance did not allege that the mortgage loan had been reinstated or
modified.
6. On or about May 23, 2023, Plaintiff commenced its second foreclosure action (the
“2023 Action”). A copy of the 2023 complaint is annexed hereto as Exhibit “C”. On or about
January 5, 2024, Plaintiff moved to voluntarily discontinue its 2023 action. Again, the loan was
not reinstated or modified and Plaintiff claimed it merely “has elected not to proceed with the
action.” Exhibit “D”.
7. Plaintiff now files its third foreclosure complaint on April 3, 2024. NYSCEF Doc.
No. 1.
8. As a result of its prior acceleration on February 16, 2018, the subject mortgage
became time barred on February 16, 2024; six years after commencement.
9. Defendant now moves to dismiss the complaint with prejudice as the mortgage is
time barred pursuant to CPLR § 213(4) in accordance with FAPA.
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ARGUMENT
THIS ACTION IS TIME-BARRED
10. Pursuant to CPLR § 213 (4), “a mortgage foreclosure action is subject to a six-year
statute of limitations. Even if a mortgage is payable in installments, once a mortgage debt is
accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire
debt” (Deutsche Bank Natl. Trust Co. v. Adrian, 157 A.D.3d 934, 935 [2d Dept 2018] [internal
quotation marks and citations omitted]). “Acceleration occurs, inter alia, by the commencement
of a foreclosure action wherein the holder of the note elects in the complaint to call due the entire
amount secured by the mortgage” (U.S. Bank National Association v Armand, 2023 NY Slip Op
05416, *3 [2d Dept October 25, 2023] [internal citations omitted]).
11. As noted above, Plaintiff previously accelerated the terms of the mortgage loan
when commenced its first action on February 16, 2018, under index number 603220/2018, by
declaring its election to accelerate the mortgage therein. See Exhibit A.
12. Therefore, “the six-year statute of limitations began to run on the entire debt in
[February 2018], when the plaintiff's predecessor in interest commenced the [2018] action and
elected to call due the entire amount secured by the mortgage” (CIT Bank, N.A. v Byers, 2023 NY
Slip Op 04978, *2 [2d Dept Oct. 4, 2023] [internal citations omitted]).
13. As such, the six-year statute of limitations expired on February 16, 2024: two
months before Plaintiff commenced the instant action.
14. As Plaintiff accelerated the mortgage loan’s maturity in February of 2018, and as it
commenced the case at bar more than six years thereafter in April of 2024, this case is time-barred
by the applicable statute of limitations, and must be dismissed accordingly, pursuant to CPLR 3211
(a) (5).
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CONCLUSION
15. In sum, the action must be dismissed as time-barred by the applicable statute of
limitations under CPLR 3211 (a) (5).
16. No prior application for the relief sought herein has been made.
WHEREFORE, on the basis of the foregoing, it is respectfully requested that the court
grant Defendant’s motion to dismiss this action with prejudice, together with any further relief the
Court deems just and proper.
Dated: Garden City, New York
April 25, 2024
LAW OFFICES OF MATTHEW K. TANNENBAUM
825 East Gate Boulevard, Suite 308
Garden City, NY 11530
/s/ Matthew K. Tannenbaum, Esq.
Matthew K. Tannenbaum, ESQ.
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NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/25/2024
CERTIFICATION OF COMPLIANCE WITH 22 NYCRR § 202.8-b
Matthew K. Tannenbaum, Esq., an attorney duly admitted to practice law in the State of New
York hereby certifies pursuant to CPLR § 2106 and under the penalties of perjury that:
1. This Affirmation was generated on a computer.
2. The word count of the Affirmation, excluding the case caption and signature block, is 694
words.
3. I have relied on the word count of the word-processing system used to prepare this
document.
4. This document complies with the word count limit set forth in 22 NYCRR § 202.8-b
Dated: Garden City, NY
April 25, 2024
/s/ Matthew K. Tannenbaum, Esq.
Matthew K. Tannenbaum, ESQ.
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Preview
FILED: SUFFOLK COUNTY CLERK 04/25/2024 03:54 PM INDEX NO. 608388/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/25/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK THE MONEY SOURCE, INC., Plaintiff, -against- INDEX NO. 608388/2024 253H, LLC; RASHANDA Y. GAMBLE A/K/A AFFIRMATION IN SUPPORT RASHANDA YVETTE GAMBLE, AS OF DEFENDANT’S MOTION ADMINISTRATRIX OF THE ESTATE OF TO DISMISS DAMON GAMBLE; RASHANDA Y. GAMBLE A/K/A RASHANDA YVETTE GAMBLE, AS HEIR AND DISTRIBUTEE OF THE ESTATE OF DAMON GAMBLE; HEIRS AND DISTRIBUTEES OF THE ESTATE OF DAMON GAMBLE; SECRETARY OF HOUSING AND URBAN DEVELOPMENT; PEOPLE OF THE STATE OF NEW YORK; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; UNITED STATES OF AMERICA, "JOHN DOE #1" through "JOHN DOE #12," the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendants. Matthew K. Tannenbaum, Esq., an attorney duly admitted to the practice of law in the State of New York affirms the following under penalty of perjury: 1. I am the attorney for the defendant 253H, LLC, (“Defendant”), in the within action, and I am fully familiar with the facts and circumstances of this matter. 2. I make this affirmation in support of Defendant’s motion seeking an order (i) dismissing this action as time-barred pursuant to CPLR § 3211 (a) (5); and (ii) granting such other and further relief as the Court may deem just and proper. 1 of 5 FILED: SUFFOLK COUNTY CLERK 04/25/2024 03:54 PM INDEX NO. 608388/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/25/2024 STATEMENT OF RELATIVE FACTS AND PROCEDURAL HISTORY 3. This is Plaintiff’s third action brought to foreclose a Mortgage secured against the premises known as 253 Hampton Avenue, East Patchogue, NY 11772. 4. On or about February 16, 2018, Plaintiff accelerated the terms of the mortgage loan by commencing an action under index number 603220/2018 (the “2018 Action”), and declaring the mortgage accelerated therein. A copy of the 2018 foreclosure complaint is annexed hereto as Exhibit “A”. 5. On or about July 14, 2023, Plaintiff voluntarily discontinued the 2018 Action. Exhibit “B”. The discontinuance did not allege that the mortgage loan had been reinstated or modified. 6. On or about May 23, 2023, Plaintiff commenced its second foreclosure action (the “2023 Action”). A copy of the 2023 complaint is annexed hereto as Exhibit “C”. On or about January 5, 2024, Plaintiff moved to voluntarily discontinue its 2023 action. Again, the loan was not reinstated or modified and Plaintiff claimed it merely “has elected not to proceed with the action.” Exhibit “D”. 7. Plaintiff now files its third foreclosure complaint on April 3, 2024. NYSCEF Doc. No. 1. 8. As a result of its prior acceleration on February 16, 2018, the subject mortgage became time barred on February 16, 2024; six years after commencement. 9. Defendant now moves to dismiss the complaint with prejudice as the mortgage is time barred pursuant to CPLR § 213(4) in accordance with FAPA. 2 of 5 FILED: SUFFOLK COUNTY CLERK 04/25/2024 03:54 PM INDEX NO. 608388/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/25/2024 ARGUMENT THIS ACTION IS TIME-BARRED 10. Pursuant to CPLR § 213 (4), “a mortgage foreclosure action is subject to a six-year statute of limitations. Even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” (Deutsche Bank Natl. Trust Co. v. Adrian, 157 A.D.3d 934, 935 [2d Dept 2018] [internal quotation marks and citations omitted]). “Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the holder of the note elects in the complaint to call due the entire amount secured by the mortgage” (U.S. Bank National Association v Armand, 2023 NY Slip Op 05416, *3 [2d Dept October 25, 2023] [internal citations omitted]). 11. As noted above, Plaintiff previously accelerated the terms of the mortgage loan when commenced its first action on February 16, 2018, under index number 603220/2018, by declaring its election to accelerate the mortgage therein. See Exhibit A. 12. Therefore, “the six-year statute of limitations began to run on the entire debt in [February 2018], when the plaintiff's predecessor in interest commenced the [2018] action and elected to call due the entire amount secured by the mortgage” (CIT Bank, N.A. v Byers, 2023 NY Slip Op 04978, *2 [2d Dept Oct. 4, 2023] [internal citations omitted]). 13. As such, the six-year statute of limitations expired on February 16, 2024: two months before Plaintiff commenced the instant action. 14. As Plaintiff accelerated the mortgage loan’s maturity in February of 2018, and as it commenced the case at bar more than six years thereafter in April of 2024, this case is time-barred by the applicable statute of limitations, and must be dismissed accordingly, pursuant to CPLR 3211 (a) (5). 3 of 5 FILED: SUFFOLK COUNTY CLERK 04/25/2024 03:54 PM INDEX NO. 608388/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/25/2024 CONCLUSION 15. In sum, the action must be dismissed as time-barred by the applicable statute of limitations under CPLR 3211 (a) (5). 16. No prior application for the relief sought herein has been made. WHEREFORE, on the basis of the foregoing, it is respectfully requested that the court grant Defendant’s motion to dismiss this action with prejudice, together with any further relief the Court deems just and proper. Dated: Garden City, New York April 25, 2024 LAW OFFICES OF MATTHEW K. TANNENBAUM 825 East Gate Boulevard, Suite 308 Garden City, NY 11530 /s/ Matthew K. Tannenbaum, Esq. Matthew K. Tannenbaum, ESQ. 4 of 5 FILED: SUFFOLK COUNTY CLERK 04/25/2024 03:54 PM INDEX NO. 608388/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/25/2024 CERTIFICATION OF COMPLIANCE WITH 22 NYCRR § 202.8-b Matthew K. Tannenbaum, Esq., an attorney duly admitted to practice law in the State of New York hereby certifies pursuant to CPLR § 2106 and under the penalties of perjury that: 1. This Affirmation was generated on a computer. 2. The word count of the Affirmation, excluding the case caption and signature block, is 694 words. 3. I have relied on the word count of the word-processing system used to prepare this document. 4. This document complies with the word count limit set forth in 22 NYCRR § 202.8-b Dated: Garden City, NY April 25, 2024 /s/ Matthew K. Tannenbaum, Esq. Matthew K. Tannenbaum, ESQ. 5 of 5