        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

240
CA 14-01773
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.


WENDOVER FINANCIAL SERVICES, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

JO-ANN RIDGEWAY, AS EXECUTRIX AND BENEFICIARY
UNDER THE LAST WILL AND TESTAMENT OF AMELIA
DONVITO, ALSO KNOWN AS AMELIA C. DONVITO, DECEASED,
DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


ROSICKI, ROSICKI & ASSOCIATES, P.C., PLAINVIEW (EDWARD RUGINO OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

SCACCIA LAW FIRM, SYRACUSE (DANTE M. SCACCIA OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered June 23, 2014. The order granted the motion
of defendant-respondent to dismiss the complaint against her.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action to foreclose a
reverse mortgage executed by decedent in 1999. “Reverse mortgages are
designed to allow elderly homeowners to borrow money against the
accumulated equity in their homes and, unlike traditional mortgages,
‘the borrower in a reverse mortgage receives periodic payments (or a
lump sum) and need not repay the outstanding loan balance until
certain triggering events occur’ . . . The triggering event generally
involves the death of the borrower or the sale of the home” (OneWest
Bank, FSB v Smith, 135 AD3d 1063, 1063). Here, the triggering event
was the death of decedent on May 12, 2006. In a prior, related
appeal, we concluded that a prior foreclosure action that plaintiff
commenced against decedent was a nullity because “ ‘the dead cannot be
sued’ ” (Wendover Fin. Servs. v Ridgeway, 93 AD3d 1156, 1157). We
also concluded that the caption could not properly be amended pursuant
to CPLR 305 (c) to substitute decedent’s estate for decedent because
decedent was never a party to the action (id.). Plaintiff thereafter
commenced the instant action on December 10, 2013.

     Contrary to plaintiff’s contention, Supreme Court properly
granted the motion of defendant-respondent (defendant) pursuant to
CPLR 3211 (a) (5) and dismissed the complaint against her as barred by
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                                                         CA 14-01773

the six-year statute of limitations (see CPLR 213 [4]). “[D]efendant
had ‘the initial burden of establishing prima facie that the time in
which to sue ha[d] expired’ . . . , and thus was required ‘to
establish . . . when the plaintiff’s cause of action accrued’ ”
(Larkin v Rochester Hous. Auth., 81 AD3d 1354, 1355). Defendant
established that, pursuant to the mortgage agreement, “the principal
sum and interest shall become due upon,” inter alia, the death of the
mortgagor, i.e., decedent, which occurred on May 12, 2006, and that
defendant received a notice of default and demand for payment sent
from a nonparty that serviced the mortgage on June 29, 2006. “[T]he
statute of limitations . . . was triggered when the party that was
owed money had the right to demand payment, not when it actually made
the demand” (Hahn Automotive Warehouse, Inc. v American Zurich Ins.
Co., 18 NY3d 765, 771). Thus, the cause of action accrued on May 12,
2006, even if plaintiff was unaware that the event entitling it to
relief had occurred (see Ely-Cruikshank Co. v Bank of Montreal, 81
NY2d 399, 403; Gower v Weinberg, 184 AD2d 844, 845). “Statutes of
[l]imitation are statutes of repose representing a legislative
judgment that . . . occasional hardship . . . is outweighed by the
advantage of barring stale claims” (Ely-Cruikshank Co., 81 NY2d at 404
[internal quotation marks omitted]). We note that, even following
dismissal of its first action by this Court as a nullity, plaintiff
delayed in commencing the instant action, and thus “there is no
injustice on the facts of this case” (id.).




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
