Supreme Court, Queens County, June 22, 2018

Eckert Seamens Cherin & Mellott, LLC, White Plains, for plaintiff.

Law Office of Yuiry Moshes, P.C., Brooklyn, for Queensly Ajibola, defendant.

This notice of motion is hereby decided in accordance with this decision/order.

This is an action to foreclose a mortgage against real property known as 145-14 226th Street, Springfield Gardens, New York 11413, block 13482, lot 26, situated within the County of Queens. Plaintiff commenced the instant proceeding with the filing of a summons, complaint and notice of pendency on January 8, 2016. On February 29, 2016, defendant Queensly Ajibola filed an answer, asserting eight affirmative defenses and one counterclaim. A preliminary conference and compliance conference were held on May 26, 2016, and November 30, 2016, respectively. Plaintiff filed a note of issue on August 4, 2017.

Plaintiff moves by notice of motion seeking an order: (1) granting summary judgment, pursuant to CPLR 3212, against defendant Queensly Ajibola, as heir and administrator of the estate of Tunde Ajibola, also known as Tunde Tajudee Ajibola, and as a natural guardian of W.A., I.A. and E.A., heirs to the estate of Tunde Ajibola, also known as Tunde Tajudee Ajibola (Queensly Ajibola), and striking her answer, inclusive of affirmative defenses and a counterclaim, with prejudice; (2) granting judgment, pursuant to CPLR 3215, against defendants Whitney Ajibola, as heir to the estate of Tunde Ajibola, also known as Tunde Tajudee Ajibola, Olamide Ajibola, as heir to the estate of Tunde Ajibola, also known as Tundee Tajudee Ajibola, Olayinka Ajibola, as heir to the estate of Tunde Ajibola, also known as Tunde Tajudee Ajibola, Princess Ajibola, as heir to the estate of Tunde Ajibola, also known as Tunde Tajudee Ajibola, New York City Environmental Control Board,{**61 Misc 3d at 293} New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, New York State Department of Taxation and Finance, United States of America, Godwyn Edebiri, Helen Edebiri, Jasmin Bosh, Lawrence Bosh, Edwina Bosh and "Jane Doe"; (3) appointing a referee, pursuant to RPAPL 1321, to ascertain and compute damages due and owing to plaintiff and to issue a report; (4) amending the caption to substitute Godwyn Edebiri, Helen Edebiri, Jasmin Bosh, Lawrence Bosh, Edwina Bosh and "Jane Doe" as party defendants in place of "John Doe #1" through "John Doe #6" and excising the remaining "John Doe" defendants; and (5) granting plaintiff's second cause of action for reasonable attorney fees, disbursements and allowances. Defendant Queensly Ajibola opposes the application and cross-moves for an order: (1) pursuant to CPLR 3212 denying plaintiff's motion for summary judgment and order of reference because there are triable issues of fact; (2) pursuant to CPLR 3211 (a) (3) dismissing the action in its entirety for plaintiff's failure to comply with conditions precedent; (3) pursuant to CPLR 213 (4) dismissing the instant action with prejudice as it is barred by the statute of limitations; and (4) pursuant to "RPAPL 1501 (4) (1) [sic]," cancelling and discharging the mortgage as collection is barred by the statute of limitations.

Plaintiff's application was initially fully submitted without opposition in the Centralized Motion Part of Queens County Supreme Court on August 24, 2017. After review of the parties' submissions on the New York State Courts Electronic Filing System, the matter was scheduled for a conference on January 8, 2018. Both counsel for plaintiff and defendant Queensly Ajibola appeared. The matter was adjourned to January 12, 2018, to permit defendant Queensly Ajibola to submit "working copies" of the notice of cross motion and supporting documents to the court.

A historic outline is relevant as to relationship and status of the parties. Prior to the death of Tunde Ajibola, also known as Tunde Tajudee Ajibola (Mr. Ajibola), on or about November 15, 2006, Mr. Ajibola executed and delivered a note dated November 15, 2006, whereby, Mr. Ajibola, borrower, promised to pay the principal sum of $521,250. Mr. Ajibola also executed and delivered a mortgage in the principal sum of $521,250, with interest, mortgaging the premises known as 145-14 226th Street, Springfield Gardens, NY 11413 as collateral security for the note. On July 21, 2008, plaintiff commenced a foreclosure{**61 Misc 3d at 294} proceeding against Mr. Ajibola with the filing of a summons, complaint and notice of pendency, under Queens County Supreme Court index No. 18035/2008 (prior action). In that proceeding, plaintiff's complaint alleged that Mr. Ajibola failed to comply with the terms of the note and mortgage by failing to tender the payment due October 1, 2007. Plaintiff further alleged that the default continued for a period of more than 15 days. On or about July 31, 2008, Mr. Ajibola interposed a verified answer. Pursuant to an order, dated December 5, 2008, plaintiff was awarded summary judgment without opposition and Mr. Ajibola's answer was stricken. Mr. Ajibola died on December 15, 2009.

After Mr. Ajibola's death, on or about April 9, 2013, plaintiff filed a notice of motion seeking to discontinue the prior action, noticed on March 15, 2013, and served on Mr. Ajibola by regular mail. The application was granted by an order dated June 4, 2013. Notice of entry of said order is dated February 24, 2015, and was served on Mr. Ajibola by regular mail on February 24, 2015. On or about June 11, 2015, letters of administration of the estate of Mr. Ajibola were granted to defendant Queensly Ajibola.

Plaintiff commenced the instant proceeding on January 8, 2016, naming the representatives of Mr. Ajibola's estate as defendants. In the instant proceeding, plaintiff's complaint alleges that Mr. Ajibola defaulted under the terms of the note, by failing to tender the payment due on November 1, 2008, and all payments due thereafter.

The court now turns to plaintiff's application seeking summary judgment. Plaintiff, by affidavit of Sherry Benight, a document control officer by Select Portfolio Servicing, Inc., as subservicer and attorney-in-fact for Deutsche Bank National Trust Company, as Trustee on behalf of Morgan Stanley Home Equity Loan Trust 2007-2, Mortgage Pass-Through Certificates, Series 2007-2, claims that Mr. Ajibola defaulted under the terms of the note, executed on November 15, 2006, by, inter alia, failing to tender the payment due on November 1, 2008, and each payment due thereafter. Plaintiff purportedly sent a notice of default to Mr. Ajibola dated December 19, 2012, and December 12, 2013. Said notices were sent to the property address in the name of Mr. Ajibola, although Mr. Ajibola was deceased since December 15, 2009.

Generally, a plaintiff moving for summary judgment in a foreclosure proceeding establishes its prima facie case through{**61 Misc 3d at 295} the production of the mortgage, unpaid note and evidence of default. Where, as here, a plaintiff's standing to commence the proceeding is at issue, plaintiff must prove standing as part of its prima facie showing (US Bank N.A. v Cohen, 156 AD3d 844, 845 [2d Dept 2017]). The court notes that plaintiff produced the mortgage and unpaid note and submitted the affidavit of Sherry Benight as evidence of default. Further, the court notes that copies of the mortgage and note were annexed to the complaint. By such documents, plaintiff established, prima facie, its standing as holder of the note (id. at 846).

Defendant Queensly Ajibola, as heir, opposes the application and cross-moves seeking dismissal of the instant proceeding. Defendant argues, inter alia, that the instant action is time-barred.

It is undisputed that plaintiff commenced a prior action against Mr. Ajibola on July 21, 2008, prior to his death. However, during the pendency of the prior action, Mr. Ajibola died on December 15, 2009. Significantly, plaintiff moved by notice of motion, duly noticed on March 15, 2013, for an order discontinuing the prior action after the death of Mr. Ajibola. In the attorney affirmation in support of the motion to discontinue, the attorney affirmed that "[p]laintiff may have accepted payments post acceleration without a written agreement." Nowhere in the motion did plaintiff indicate that Mr. Ajibola was dead. Obviously, the application to discontinue was granted on default by order, dated June 4, 2013. Curiously, after the application was granted, approximately 21 months later, on February 24, 2015, plaintiff served notice of entry of said order upon Mr. Ajibola, the deceased borrower, by regular mail, as indicated in the affidavit of service by mail.

The court turns to the issues of acceleration and statute of limitations. Under New York Law, "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" (EMC Mtge. Corp. v Patella, 279 AD2d 604, 605 [2d Dept 2001]). "A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period, subsequent to the initiation of the prior foreclosure action" (Deutsche Bank Natl. Trust Co. v Adrian, 157 AD3d 934, 935 [2d Dept 2018], quoting NMNT Realty Corp. v Knoxville 2012 Trust, 151 AD3d 1068, 1069-1070 [2d Dept 2017]). In its complaint in the prior action, plaintiff declared{**61 Misc 3d at 296} the entire principal balance to be due and owing, in accordance with the terms of the note and mortgage. Assuming that plaintiff was unaware of the death of Mr. Ajibola, which this court does not find based on plaintiff's affidavit, and in accordance with plaintiff's acceleration of the mortgage by its complaint in the prior action, the statute of limitations began to run on July 21, 2008, and expired on July 21, 2014, notwithstanding the provisions of CPLR 210 (b). Alternatively, considering the provisions of CPLR 210 (b), the statute of limitations expired on January 21, 2016. Plaintiff's application to discontinue the prior action was duly noticed on March 15, 2013, and granted pursuant to an order dated June 4, 2013. Service of the motion was on Mr. Ajibola. Notice of entry of said order was served on Mr. Ajibola, February 24, 2015. The instant proceeding was commenced on January 8, 2016, with service on the heir and administrator of Mr. Ajibola's estate. In addition, this action names the estate as the substitution for Mr. Ajibola as the defendant.

It is well settled that "[t]he death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015 (a)" (see Vapnersh v Tabak, 131 AD3d 472, 473 [2d Dept 2015]; Kelly v Methodist Hosp., 276 AD2d 672, 673 [2d Dept 2000]). Therefore upon the death of Mr. Ajibola on December 15, 2009, the proceedings were automatically stayed (Gonzalez v Ford Motor Co., 295 AD2d 474 [2d Dept 2002]).

In the affidavit of Ms. Sherry Benight attached to this motion, in support of seeking summary judgment in favor of plaintiff, plaintiff showed that it was aware of Mr. Ajibola's death. Although, plaintiff has not stated when it learned of his death, he was deceased more than three years prior to the motion to discontinue the prior action. It is no surprise that the motion to discontinue the prior action was granted on default. Curiously, plaintiff entered the order more than two years after the issuance and served the notice of entry of the order more than five years after the death of Mr. Ajibola. However, any service on the deceased person, Mr. Ajibola, was null and void.

Further, any action taken thereafter without the proper substitution is a nullity (see Hicks v Jeffrey, 304 AD2d 618 [2d Dept 2003]). Plaintiff's application seeking to discontinue the prior proceeding is null and is not deemed a proper revocation of the acceleration of the mortgage default. Plaintiff has to{**61 Misc 3d at 297} show a proper effective affirmative act to revoke the prior acceleration of the mortgage.

Plaintiff now argues that the instant proceeding is brought as a result of Mr. Ajibola's default by, inter alia, failing to tender the payment due November 1, 2008, and each payment due thereafter, obviously up to the date of his death. However, plaintiff failed to show two necessary and relevant acts. Plaintiff failed to move for substitution of the proper party upon Mr. Ajibola's death and thus, failed to properly revoke its prior acceleration of the mortgage by an affirmative act within the six-year statute of limitations. Certainly, any action taken by plaintiff, between December 2009, after Mr. Ajibola's death, and June 2015, prior to the letters of administration, constitutes a nullity without the proper substitution of Mr. Ajibola's heir and administrator of his estate. All service on Mr. Ajibola during December 2009 and June 2015 was defective. Plaintiff's prior acceleration was not properly revoked. Thereafter, plaintiff could not now argue that it has re-accelerated a mortgage whose prior acceleration was not properly revoked. Based on these reasons, the statute of limitations continued to run from 2008 without a tolling period. Consequently, this action is time-barred.

Accordingly, plaintiff's application seeking summary judgment is denied. Defendant's application seeking dismissal of the instant proceeding is granted.