Plaintiff Files Motion for Summary Judgment

This is a motion for summary judgment filed by plaintiff as executor under a last will and testament before the Supreme Court, Special Term, Kings County.

The plaintiff filed a motion for summary judgment under Rule 113 of the Rules of Civil Practice. This action is brought pursuant to Section 500 of the Real Property Law to have a mortgage cancelled of record on the ground that it is outlawed by the statute of limitations pursuant to Section 47-a, Civil Practice Act.

In the answer, general denials and two affirmative defenses were stated, namely: (1) that on 17 September 1949, the mortgagors acknowledged the mortgage and the indebtedness in writing, thereby extending the statute of limitations, and (2) that sometime after 17 September 1949 and prior to the expiration of the statute of limitations, upon information and belief, the mortgagors absented themselves from the jurisdiction of the instant court in that they or either of them were then and still are residing in Italy.

On 8 February 1929, AC and LC, his wife, executed and delivered to PK a mortgage in the sum of $2,750, covering premises owned by them as tenants by the entirety, with interest at 6 per cent. payable quarterly until 8 February 1932, when the balance of the principal sum became due and payable.

On the same day, 8 February 1929, the aforesaid mortgage was assigned to KD.

On 13 August 1940, KD, the assignee, a resident of Kings County, died testate. On 22 January 1941, his will was admitted to probate and the defendant herein duly qualified as executor thereunder and is still acting in that capacity.

Sometime in August 1941, the defendant filed transfer tax schedules in the Surrogate’s Court and in schedule C thereof, among other things, made reference to the aforementioned mortgage and stated that ‘according to the decedent’s records, no interest has been paid on this mortgage for a number of years and the same has been apparently abandoned, the decedent realizing that there was not sufficient equity over the first mortgage for him to foreclose. The fair and reasonable value of this mortgage is none.’

On 17 September 1949, AC and LC by deed, conveyed the mortgaged premises to LC individually, containing the recital ‘Subject to all liens and encumbrances of record, if any.’ Defendant did not claim that he received any interest or principal since he qualified as executor sometime in January 1941; and, thus, it would appear that the mortgage was outlawed at the time the aforementioned deed was delivered in 1949. However, defendant argued that the recital in the deed quoted above revived the mortgage in question and extended the statute of limitations, particularly since the conveyance was made by the original mortgagors. As held by the court in the cases of cf. Shohfi v. Shohfi, 303 N.Y. 370, 376, 103 N.E.2d 330, 332; Winter v . Kram, 3 App.Div.2d 175, 177, 159 N.Y.S.2d 417, 420, 421; and, Mintz v. Greenberg, 5 App.Div.2d 774, 170 N.Y.S.2d 82, aff’d 5 N.Y.2d 909, 183 N.Y.S.2d 87, such recital, absent other circumstances which amount to an admission of the validity and lien of the outstanding encumbrances, is insufficient to extend the period of limitation. Moreover, as discussed in the cases of Matter of Kendrick, 107 N.Y. 104, 109-110, 13 N.E. 762, 763-764; Mintz v. Greenberg [supra], it does not constitute as a written acknowledgment or promise under which the mortgagors intended to again become personally liable on the debt pursuant to section 59 of the Civil Practice Act.

In view of the foregoing, it appearing that the mortgage is outlawed, it is therefore unnecessary to consider the second defense. Based on the pleadings and proofs submitted, the defendant failed to raise a triable issue.

Accordingly, the plaintiffs’ motion was granted.

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