Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 8, 2026

2024-07265, (Index No. 620199/23)

Cheryl E. Chambers, J.P.

Deborah A. Dowling

Lillian Wan

Elena Goldberg Velazquez, JJ.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and breach of the implied covenant of good faith and fair dealing, the plaintiff appeals from an order of the Supreme Court, Nassau County (Philippe Solages, Jr., J.), entered July 2, 2024. The order granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In September 2012, the plaintiff executed loan documents with the defendant, including a note in the amount of $275,996 and a consolidation, extension, and modification agreement, which were secured by a mortgage on his residence at 112 Forest Avenue, Massapequa. The plaintiff alleged that beginning in or about December 2014, the defendant improperly declared the loan to be in default and began rejecting the plaintiff's monthly payments, which the plaintiff made through an automatic payment arrangement. The plaintiff further alleged that in 2015, he received written notices from the defendant advising that the loan was in default, stating arrears dating back to December 1, 2014, and warning of an intent to foreclose. In May 2018, the plaintiff received a notice advising that the defendant had advanced property tax payments on the plaintiff's behalf, that there was an escrow shortage, and that his monthly payment would increase from the amount of $1,258 to the amount of $3,257, and he alleged that when he attempted to remit a payment in the amount of $1,258, the defendant rejected it. In May 2018, the defendant commenced a foreclosure action in the Supreme Court based on the asserted December 1, 2014 default (hereinafter the 2018 foreclosure action). In a letter dated January 2, 2019, the defendant's counsel responded to inquiries from the plaintiff's counsel, acknowledged error in the handling of the loan account, and outlined proposed corrective measures, including reversal of default-related fees, correction of credit reporting, and discontinuance of the 2018 foreclosure action. By order entered April 13, 2020, the court directed dismissal of the 2018 foreclosure action. The parties continued to discuss resolution, and the plaintiff sent a demand letter dated July 7, 2020, seeking, among other things, satisfaction of the mortgage, reimbursement of payments and fees, proof that the defendant had corrected his credit reporting, and monetary compensation. In response, the defendant's counsel stated in September 2020 that the defendant had brought the loan current as of July 1, 2020, that it was willing to consider a cash payment, and that it remained open to settlement if the plaintiff abandoned his demand for a full discharge of the mortgage.

The defendant thereafter commenced a new foreclosure action in the Supreme Court in October 2022, alleging a September 1, 2020 default on the same loan and again seeking to foreclose on the property (hereinafter the 2022 foreclosure action). The plaintiff, appearing pro se, interposed an answer in November 2022, disputing the defendant's allegation of default as of September 1, 2020, relying in part on the defendant's 2020 communications stating that the loan had been made current as of July 1, 2020, and asserting that the defendant had not provided required pre-foreclosure notices.

While the 2022 foreclosure action remained pending, on December 13, 2023, the plaintiff commenced this action against the defendant, alleging, among other things, causes of action to recover damages for breach of contract and breach of the implied covenant of good faith and fair dealing based on the defendant's alleged wrongful declaration of default in 2014, rejection and misapplication of payments, and imposition of charges and escrow increases communicated in 2015 and 2018. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint on several grounds, including that the causes of action alleging breach of contract and breach of the implied covenant of good faith and fair dealing accrued no later than 2014 and were barred by the applicable six-year statute of limitations, that the cause of action to recover damages for breach of the implied covenant of good faith and fair dealing was duplicative of the breach of contract cause of action, and that the plaintiff had not pleaded facts supporting cancellation or discharge of the mortgage. The defendant also moved, in the alternative, to consolidate this action with the 2022 foreclosure action because both matters arose out of the same loan and alleged payment history. The plaintiff opposed that branch of the motion which was pursuant to CPLR 3211(a) to dismiss the complaint, but he joined in the defendant's request for consolidation in the event that any part of the action proceeded.

In an order entered July 2, 2024, the Supreme Court granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint. The plaintiff appeals.

"A defendant who moves to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired" (Berger v Stolzenberg, 158 AD3d 738, 739). "The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period" (id.).

"A cause of action alleging breach of contract is governed by a six-year statute of limitations and accrues at the time of the alleged breach" (CDx Labs., Inc. v Zila, Inc., 162 AD3d 972, 973 [citation omitted]; see CPLR 213[2]). Similarly, a "cause of action alleging breach of the implied covenant of good faith and fair dealing . . . is governed by a six-year statute of limitations" (P.S. Fin., LLC v Eureka Woodworks, Inc., 214 AD3d 1, 29). Here, the defendant established, prima facie, that the time in which to sue had expired (cf. Berger v Stolzenberg, 158 AD3d at 739). In opposition, the plaintiff failed to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period (see Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 AD3d 780, 782).

Contrary to the plaintiff's contention, the untimeliness of the breach of contract and breach of the implied covenant of good faith and fair dealing causes of action is not cured by tolling under the continuing wrong doctrine. The continuing wrong doctrine "is usually employed where there is a series of continuing wrongs and serves to toll the running of a period of limitations to the date of the commission of the last wrongful act" (Affordable Hous. Assoc., Inc. v Town of Brookhaven, 150 AD3d 800, 802 [internal quotation marks omitted]). The doctrine allows only tolling "predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" (Matter of Salomon v Town of Wallkill, 174 AD3d 720, 721 [internal quotation marks omitted]). "The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs" (York v York, 235 AD3d 1032, 1034 [internal quotation marks omitted]). Here, the plaintiff's allegations amount to a single wrong that has continuing effects (see [*2]id.).

Furthermore, the plaintiff's contention regarding General Obligations Law § 17-101, raised for the first time on appeal, is not properly before this Court (see U.S. Bank N.A. v Romano, 231 AD3d 1079, 1083).

The parties' remaining contentions either are without merit or need not be addressed in light of our determination.

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

CHAMBERS, J.P., DOWLING, WAN and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court