In an action to foreclose a mortgage, the plaintiff appeals from the order which granted the defendant's motion, pursuant to CPLR 3211(a)(5), to dismiss the complaint as time-barred. The Supreme Court determined that the action was untimely, as the entire mortgage debt had been accelerated more than six years before the action was commenced. The court rejected the plaintiff's contention that certain monthly invoices sent to the defendant's lawyer had been effective to de-accelerate the outstanding mortgage debt. The court set forth two alternative grounds for its determination: (1) the invoices were not sent to the proper address as specified in the mortgage, and (2) the invoices failed to constitute clear and unequivocal notice of the plaintiff's election to de-accelerate the outstanding mortgage debt.
On appeal, the plaintiff does not contend that the invoices were sent to the proper address in accordance with the terms of the mortgage. The only argument made by the plaintiff that relates to the first alternative ground set forth in the order appealed from is raised for the first time on appeal and is not properly before the Appellate Division. The Appellate Division need not address the plaintiff's remaining contentions, as they all relate to the second alternative ground set forth in the order appealed from.
Deutsche Bank Natl. Trust Co. v. 9th St, LLC, NY Slip Op 05542 (2d Dep't October 13, 2021)
