An action to foreclose a mortgage is subject to a six-year statute of limitations which begins to run on the entire debt once the debt is accelerated. Where the maturity of the debt has been validly accelerated by commencement of a foreclosure action, the noteholder's voluntary withdrawal of that action revokes the election to accelerate, absent the noteholder's contemporaneous statement to the contrary.
21st Mtge. Corp. v. Rivera, NY Slip Op 04116 (2d Dep't June 30, 2021)
The doctrine of equitable estoppel does not bar defendants from asserting the defense since nothing in the record shows that any of their acts contributed to the delay in filing the complaint. In fact, the allegations in the complaint show that plaintiffs had or could have obtained with due diligence all the information they needed to bring an action before the limitations period expired. Neither does the continuing wrong doctrine apply to toll the applicable statute of limitations on the cause of action for an accounting since the actual wrongs on which that cause of action is based are defendants' alleged fraud and breach of contract.
Derringer v. F.G.G. Prods. Inc., NY Slip Op 04187 (1st Dep't July 1, 2021)
The plaintiff must demonstrate that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it can cure the alleged default by any means short of vacating the premises. The First Department interprets the third criterion to require a tenant to move for injunctive relief before the cure period in the landlord's notice expires.
Gap, Inc. v. 170 Broadway Retail Owner, LLC, NY Slip Op 04115 (1st Dep't June 29, 2021)
The Appellate Division affirmed the Order which granted plaintiff's motion for summary judgment in lieu of complaint and denied defendant's cross motion for summary judgment. The plaintiff made a prima facie showing by proof of the parties' agreement and defendant's failure to make the required payments. The defendant failed to raise an issue of fact as to his defense that the loan is unenforceable under General Obligation Law § 5-413 as a loan made for the purpose of gambling or as a loan with a usurious interest rate. The defendant argued that the plaintiff's motion is premature, citing a need for discovery of a locked flash drive on which plaintiff allegedly maintained a spreadsheet of usurious loans. The Appellate Division rejected the argument, as he failed to explain why he was unable to maintain his own tally of monies loaned, monies paid, and interest rates.
Bronson v. Jacobs, NY Slip Op 04081 (1st Dep't June 24, 2021)
The claim is not permitted in a subsequent plenary action.
LabMD, Inc. v. Buchanan, NY Slip Op 04084 (1st Dep't June 24, 2021)
The appeal from orders which granted defendants' motions to strike the complaint based on plaintiff's failure to provide court-ordered discovery was dismissed, as taken from nonappealable orders. Plaintiff may not appeal from these orders as they were entered upon his default, pursuant to CPLR 5511. Plaintiff's proper recourse is to move to vacate his default and, if necessary, appeal from the denial of that motion.
Manrique v. Delgado, NY Slip Op 04085 (1st Dep't June 24, 2021)
Plaintiffs sought to recover the security deposit given in connection with their lease of a condominium unit owned by defendants. The court granted plaintiffs' motion to strike defendants' answer for failure to comply with discovery obligations, and thereupon granted judgment in favor of plaintiffs in the amount of the deposit plus statutory interest. Contrary to defendants' arguments, the motion court could consider the lease, even though it was not submitted by plaintiffs in support of their motion to strike, because it had been e-filed in connection with an earlier motion.
Quadracci v. Freeman, NY Slip Op 04094 (1st Dep't June 24, 2021)
