Plaintiff, through predecessor counsel, commenced this action claiming foreclosure of a mortgage dated December 14, 2005 in the amount of $ 300,250.00 which was recorded with the Clerk of Suffolk County on February 16, 2006 in Liber 21237 of Mortgages at Page 268. Said mortgage was given to secure an Adjustable Rate Note in the amount of $ 300,250.00 of the same date. The mortgage constitutes a first lien encumbering premises known as 3 North Cozine Road, Center Moriches, Town of Brookhaven, New York. Plaintiff is a mesne assignee of both the Adjustable Rate Note and Mortgage.

In accordance with Administrative Order no. 67-18, the within matter was assigned to I.A.S. Part 21 on August 14, 2017.

Plaintiff, alleging a default in payment by Defendant occurring on August 1, 2008, served Defendant MATTHEW HOCHSTRASSER with a written Thirty Day Notice dated September 21, 2008 which unequivocally stated, in pertinent part, that his failure to remit a specified payment on or before October 21, 2008 "...will result in the acceleration of your mortgage note. Once acceleration has occurred, a foreclosure action, or any other remedy permitted under the terms of your Mortgage or Deed of Trust, may be initiated." Defendant does not deny receipt of the Thirty Day Notice and, in fact, has provided a copy thereof within the Exhibits to the Cross-Motion.

Upon Defendant's failure to remit the payment demanded in the Thirty Day Notice, the same Plaintiff as the one in the matter that is sub judice caused to be filed, on February 11, 2009 a Summons, Verified Complaint and Notice of Pendency herein under Suffolk County index no. 2009-05015 (the "First Action"). That action claimed foreclosure of the same mortgage, against the same real property, as the instant action. That action was dismissed by Order dated November 21, 2012 and the Notice of Pendency was cancelled and discharged by Order dated January 2, 2013.

Thereafter and on October 6, 2015, the same Plaintiff sent Defendant two written notifications which purported to comply with the provisions of RPAPL § 1304. These notices were decidedly equivocal on the issue of acceleration, to the effect that they advised Defendant that Plaintiff would proceed with acceleration of the loan if payment was not made as demanded. The notices are also at odds as to the same amount being claimed due for arrears but upon different dates.

Again, upon Defendant's failure to remit the payment demanded in the two notices, Plaintiff caused to be filed, on March 17, 2016, a Summons, Verified Complaint and Notice of Pendency herein under Suffolk County index no. 2016-604346 (the "Second Action"). Defendant, through counsel, seasonably appeared and interposed an Answer which included sixteen Affirmative Defenses.

Plaintiff now moves for summary judgment pursuant to CPLR § 3212 (mot. seq. 001), asserting that there are no material or triable issues of fact and that it is entitled to judgment as a matter of law. In both response and opposition, Defendant has cross- moved (mot. seq. 002) for summary judgment, demanding dismissal upon statute of limitations grounds as well as upon Plaintiff's purported failure to strictly comply with the mandates of RPAPL § 1304.

In order for Plaintiff to prevail upon its application for summary judgment in a mortgage foreclosure action, it must come forward with the instrument of indebtedness, the mortgage that secures the same together with proof of the default, Wells Fargo Bank N.A. v. Karla (71 AD3d [*2]1006 [2d Dept 2010]). Where Plaintiff sustains its prima facie case, the burden then shifts to Defendant to demonstrate the existence of a triable issue of fact, else summary judgment must be granted, Washington Mutual Bank v. Valencia (92 AD3d 774 [2d Dept 2012]).

Here, Defendant has raised the statute of limitations as a defense, asserting that Plaintiff's action is time barred. According to Defendant, the indebtedness upon the Adjustable Rate Note was accelerated not later than February 11, 2009, upon the filing of the First Action. Plaintiff, on the other hand, claims, in its moving papers, that acceleration did not occur until March 17, 2016, when it filed the instant action. Nowhere in Plaintiff's moving papers is there any reference whatsoever to the September 21, 2008 Thirty Day Notice nor to the First Action which was filed on February 11, 2009. Indeed, Plaintiff's complaint in the present action falsely states verbatim, in Paragraph 17 thereof, that "No other has been commenced at law, or otherwise, for the recovery of the sum, or any part thereof, secured by the Note and Mortgage." This specious averment is clearly belied by the public record as maintained by the Clerk of Suffolk County as well as by the contents of Defendant's cross-motion.

Where, as here, an assertion is made that Plaintiff is precluded, by the applicable statute of limitations, from pursuing one or more causes of action, it is incumbent upon the party who invokes the same to make a prima facie showing that the time in which Plaintiff may sue has actually expired, Wells Fargo Bank N.A. v. Burke 155 AD3d 668 (2nd Dept. 2017). If such a showing is made to the satisfaction of the Court, the burden is then shifted to Plaintiff to demonstrate otherwise by way of an exception, a toll or proof that the action was, in fact, timely commenced, Singh v. New York City Health & Hospitals Corp. [Bellevue Hospital Center & Queens Hospital Center] 107 AD3d 780 (2nd Dept. 2013).

The applicable statute of limitations with respect to an action to foreclose a mortgage or to collect the debt secured thereby is codified in Article 2 of the New York Civil Practice Laws and Rules, specifically CPLR § 213(4), which imposes a limitation period of six years. Insofar as it concerns a mortgage debt which by its express terms is payable in installments, a separate cause of action necessarily accrues upon each unpaid installment and the statute of limitations commences to run upon each such installment as it comes due, Nationstar Mortgage LLC v. Weisblum 143 AD3d 866 (2nd Dept. 2016). A written notice which serves to accelerate the maturity of the indebtedness must be both clear and unequivocal on its face, Sarva v. Chakravorty 24 AD3d 438 (2nd Dept. 2006). However, once the indebtedness is unequivocally accelerated by the holder, the statute of limitations will commence running upon the entire debt as of the moment of acceleration, U.S. Bank N.A. v. Joseph 159 AD3d 968 (2nd Dept. 2018), Stewart Title Insurance Co. v. Bank Of New York Mellon 154 AD3d 656 (2nd Dept. 2017), Beneficial Homeowner Service Corp. v. Tovar 150 AD3d 657 (2nd Dept. 2017).

In its opposition to Defendant's cross-motion, Plaintiff, for the first time, tacitly acknowledges that the First Action was indeed filed. The opposition, consisting solely of the Affirmation of Douglas S. Thaler Esq. (and not supported by an affidavit from a party with actual knowledge), states that on or about January 29, 2015, an entity known as America's Servicing Company sent a so called "De-Acceleration Letter" to Defendant which, it is claimed, was transmitted during the time in which the statute of limitations had not yet expired. Defendant categorically denies, in a subsequent sworn Affidavit, the receipt of such a letter and Plaintiff has submitted nothing beyond counsel's bare Affirmation in support of Plaintiff's contention that it [*3]de-accelerated the loan. It is settled law that an affirmation made by an attorney, who does not possess personal knowledge of the facts of a matter, is wholly devoid of probative value, JMD Holding Corp. v. Congress Financial Corp. 4 NY3d 373 (2005), Currie v. Wilhouski 93 AD3d 816 (2nd Dept. 2012).

As an aside, Plaintiff's counsel argues, incredibly, that the filing of the First Action did not operate as an acceleration of the debt inasmuch as Paragraphs 19 and 22 of the Mortgage contain provisions which allow Defendant to reinstate the accelerated debt or to otherwise cure the default, thereby rendering the loan not subject to accceleration. However, it is axiomatic that absent acceleration of the indebtedness, Plaintiff cannot sue to foreclose the mortgage. This Court finds Plaintiff's opposition to the cross-motion to be wholly unpersuasive and completely lacking in probative value.

Finally, an action claiming foreclosure of a mortgage is a suit sounding in equity, Dunkley v. Van Buren 3 Johns Ch 330 (1818), Reichert v. Stilwell 172 NY 83 (1902), Jamaica Savings Bank v. M.S. Investing Co. Inc. 274 NY 215 (1937) and all of the rules and maxims of equity are fully extant therein. It has long been the rule that one must do equity in order to obtain equitable relief. In the matter that is sub judice, this Court is of the opinion that Plaintiff has acted inequitably, thus barring it from seeking equitable relief.

Accordingly, the Court need not reach any of the other defenses and issues that were so succinctly articulated by Defendant's counsel.

Accordingly, it is

ORDERED that the application of the Plaintiff (seq. 001) for summary judgment pursuant to CPLR § 3212 and an Order of Reference pursuant to RPAPL § 1321 is hereby denied in its entirety; and it is further

ORDERED that the cross-motion by Defendant MATTHEW HOCHSTRASSER (seq. 002) for dismissal upon the ground that the applicable statute of limitations has expired shall be and the same is hereby granted in its entirety; and it is further

ORDERED that the within action is hereby dismissed in its entirety; and it is further

ORDERED that upon payment of the proper fees by Plaintiff, the Clerk of Suffolk County shall cause the Notice of Pendency to be cancelled and discharged of record; and it is further

ORDERED that any relief not expressly granted shall be and the same is hereby denied.