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Columns & DepartmentsLand Use and PlanningLitigationLJN NewslettersNew York Real Estate Law Reporter

Real Property Law

BY ljnstaff
December 01, 2017

Statute of Limitations Does Not Bar First Mortgagee's Claim
 Stewart Title Insurance Co v. Bank of New York Mellon
NYLJ 10/6/17, p. 24, col. 5
AppDiv, Second Dept.
(3-1 decision; memorandum opinion; dissenting opinion by Hinds-Radix, J.)

In an action to cancel and discharge a first mortgage, Stewart Title, as assignee of a subsequent mortgage, appealed from Supreme Court's denial of its motion to enter a default judgment against the first mortgagee. A divided Appellate Division affirmed with respect to the first mortgagee, holding that the statute of limitations did not bar the first mortgagee's claim.

In 2005, Graffi purchased the subject property and financed it with two mortgages from CFSB in the amounts of $372,000 and $74,400. The following year, Graffi defaulted, and the loan servicer sent a notice of default indicating that if the default were not cured by Jan. 22, 2007, the mortgage payments would be accelerated. In February 2007, Bank of New York, CFSB's assignee, brought a foreclosure action. While that action was pending, Brookhaven acquired title to the property from Graffi. Brookhaven financed the purchase with mortgage loans from CPC. Those loans were intended to satisfy the mortgage loans held by Bank of New York, but at closing, the funds were paid to imposters who absconded with the funds.

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