TRIAIjAS, PART 51 NASSAU COUNTY STATES RESOURCES …

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SHORT FORM ORDER

SUPREME COURT - STATE OF NEW YORK

Present: HON. JAMES P. McCORMACK, Acting Justice of the Supreme Court

STATES RESOURCES CORPORATION,

TRIAIjAS, PART 51

NASSAU COUNTY

-against-

Plaintiff,

Index No. 003417/05 Motion Seq. No.: 004 and 005 Submission Date: 1/9/07

JOSEPH PATRICK FEE, ANITA FEE, OCEANSIDE CHRISTOPHER FEDERAL

CREDIT UNION, "JOHN DOE #1-10" AND "JANE DOE # 1-10" the names

John Doe and Jane Doe being fictitious, their identified being unknown to the Plaintiffs, it being the intention of Plaintiff to designate any and all unknown person, including, but not limited to, the tenants, occupants, corporations, and judgment creditors, if any, holding or claiming some right, title, interest or lien, in or to the mortgaged premises herein,

Defendants.

The following papers read on this motion:

Notice of Motion.... ...... Answering Papers................................................ .xX Reply..................................................................... .. Briefs: Plaintiff' s / Petitioner s......................

Defendant' s / Respondent' s..............

Motion pursuant to CPLR 3212 by the defendants Joseph Patrick Fee and Anita

Fee, for summary judgment dismissing the complain insofar as asserted against them.

Motion pursuant to CPLR 3212 by the plaintiff State Resources Corporation for

summary judgment.

In March of 2005, the plaintiff State Resources Corporation commenced the

within action to foreclosure upon a mortgage allegedly executed in February of 1994 by

co-defendants Joseph Patrick Fee and Anita Fee.

In sum and substance, the plaintiff asserts that in 1994, Fleet Bank entered into a

lending relationship with DAF Welding & Piping Systems ("DAF") - a now defunct

corporation in which co-defendant Patrick Fee was a principal.

In exchange for a line of credit offered by Fleet to DAF in 1994, Patrick Pee

executed and delivered to Fleet, a personal guarantee dated February 17, 1994, by

which he guaranteed,

inter alia, DAF' s obligations under the line of credit and/ or future

extensions thereunder.

The line of credit was subsequently extended by three agreements dated March

and August of 1994, and March of 1995.

It is undisputed that DAF made its last payment on the loan in February of 1996

and thereafter was in default of its payment obligations (Powers (Feb 10) Aff., in Opp to

Defs' Mot. to Renew 10). Thereafter, by handwritten letter dated November 1999, Patrick Pee

corresponded with a Fleet Bank officer, requesting that Fleet, " (p)lease accept my offer

of $1,500.00 to close out the business loan from * * * (DAF).

The remaining portion of the letter refers to the financial difficulties and various

health problems then being experienced by Fee and his wife, Anita. Approximately a

month later, Fee sent another letter to the same bank officer advising that he had

authorized his attorney "to act on * * * (hi)s behalf individually as well as DAF

Welding" (Powers, Aff., Exh.

In June of 2004, Fleet Bank assigned the subject mortgage to the plaintiff herein,

State Resources Corporation.

In January of 2005, the plaintiff sent a letter to,

inter alia, Patrick and Anita Fee

demanding payment and further advising that it had" chosen to exercise its rights to

accelerate payment" and commence a suit on the loan documents (Pltffs' Opp. , Exh.,

The plaintiffs commenced this action shortly thereafter, in March of 2005.

Discovery is now compete and the defendants move for summary judgment

dismissing the complaint. The plaintiff cross moves for the same relief.

Significantly, by separately issued prior orders, both dated December 13, 2005

this Court denied two similar motions by the parties for summary judgment.

In denying these prior applications, this Court concluded,

inter alia that the

supporting papers submitted were not in admissible form and/ or were lacking in

probative import, and thereby failed to establish prima facie showing of entitlement to

judgment on the claims advanced. Both motions, however, were denied with leave to

renew upon certification of the action as trial ready.

An ensuing - and third - motion for summary judgment was later made by the

defendants, which motion was denied as premature since it was noticed prior to trial ready certification, in violation of the Court' s December 13 directive.

The defendants now renew their application for summary judgment, arguing (1)

that the action is time-barred inasmuch as it was commenced in excess of six years from their alleged default in 1996; and (2) the mortgage is void, at least as to Anita Fee, since she has denied that she either authorized or signed the subject instrument.

The plaintiff similarly renews its prior motion by cross moving fo summary

judgment on the mortgage. The defendants' motion to dismiss is granted. The plaintiff's

motion is denied.

The defendants' submissions have established their

prima facie

entitlement to

judgment as a matter of law with respect to the claim that the instant action is time-

barred,

e., the defendants have "met * * * (their) initial burden on the motion by

establishing that more than six years had elapsed since * * * (their) default when the

mortgage became due, * * *"

(Phalen- Sobolevsky v. Mulln 26 AD3d 806, 807

see, LePore v.

Shaheen 32 AD3d 1330).

Specifically, the record establishes that DAF ceased making payments to the

plaintiffs predecessor in 1996, and therefore defaulted on its payment obligation at that

time, well over six years prior to the commencement of the within action in March of

2005.

It is settled that insofar as relevant here, a foreclosure action * * * (must be)

commenced within six years of the time the mortgagee is entitled to demand full

payment: * *

(Serapilio v Staszak 255 AD2d 824; CPLR 213(4);

Zinker v. Makler, 298

AD2d 516;

Saini v. Cinelli Enterprises Inc. 289 AD2d 770, 771; 2

Mortgages and

Mortgage Foreclosure in New

York, 935:2 (2006)

see, In re Liquidation of American

Druggists ' Ins. Co. 15 AD3d 268

cj, Phalen-Sobolevsky v. Mulln, supra; Corrado v. Petrone,

139 AD2d 483).

The plaintiff opposes the defendants' limitations claim by asserting that: (1) Fee

1999 letter constituted a formal acknowledgment of the debt, which thereby tolled the limitations period; and alternatively (2) the note in question is a " demand note" and

when payment was demanded years later in January of 2005, the statute of limitations

began to run at that juncture (Powers Aff., in Opp. ~~ 19-30).

With respect the latter claim - which has been advanced without citation to a

single case authority (Powers Aff., ~~ 28-30; Pltff' s Mem. of Law at 5) - settled law

provides that a demand can constitute the point at which the applicable, six year

limitations period wil begin the run

(Zinker v. Makler, supra; Saini v. Cinell Enterprises

Inc., supra; Serapilio v Staszak, supra).

However, the mere making of a demand is not determinative; rather, the period

wil run from the point at which the mortgagee is first" entitled" to make the demand

(Zinker v. Makler, supra at 517). If this were not so, a mortgagee could revive an

otherwise stale or long time-barred claim through the simple expedient of serving a

demand for payment at any given point in the future

(cj, Wiliams v. Clark, 281 App. Div

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