US Bank N.A. v Levy, 2020 NY Slip Op 03044 [183 AD3d 924]

May 27, 2020

Appellate Division, Second Department

[*1]

US Bank National Association, Respondent,

v

Bina Levy et al., Appellants, et al., Defendants.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carrone, LLP, Lake Success, NY (Christopher A. Gorman of counsel), for appellants.

Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent.

In an action to foreclose a mortgage, the defendants Bina Levy and Isaac Levy appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered May 22, 2018. The order denied those defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against them as time-barred.

Ordered that the order is affirmed, with costs.

While the defendants Bina Levy and Isaac Levy (hereinafter together the defendants) sustained their initial burden of demonstrating, prima facie, that the time within which to commence the action had expired ( see Deutsche Bank Natl. Trust Co. v Gambino , 153 AD3d 1232 , 1234 [2017]; see also Albertina Realty Co. v Rosbro Realty Corp. , 258 NY 472, 476 [1932]), the plaintiff, in opposition, raised a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable ( see Milone v US Bank N.A. , 164 AD3d 145 , 153-154 [2018]).

Accordingly, we agree with the Supreme Court’s denial of the defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against them as time-barred. Chambers, J.P., Leventhal, Duffy and Brathwaite Nelson, JJ., concur..