DeSocio & Fuccio, P.C., Oyster Bay, N.Y. (James B. Fuccio of counsel) for appellants.
Houser & Allison, APC, New York, N.Y. (Gary N. Smith of counsel), for respondent.
MARK C. DILLON, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, and ANGELA G. IANNACCI, JJ.
In an action, inter alia, for a judgment declaring that the plaintiff has an equitable mortgage upon certain real property, the defendants William P. Burke, Jr., and Susan C. Burke appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), entered June 2, 2015, as denied those branches of their motion which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against them, and to cancel the notice of pendency dated December 2, 2014, filed against the subject property.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendants William P. Burke, Jr., and Susan C. Burke which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against them and to cancel the notice of pendency are granted; and it is further,
ORDERED that the Nassau County Clerk is directed to cancel the notice of pendency dated December 2, 2014.
On June 16, 1997, the defendants William P. Burke, Jr., and Susan C. Burke (hereinafter together the defendants) executed a note in the sum of $370,000 in favor of Delta Funding Corporation (hereinafter Delta), which was secured by a mortgage on residential real property located in Nassau County. The proceeds of the loan allegedly were used to pay off existing liens against the property totaling $350,633.07, which payments were made at the time of closing.
The defendants allegedly defaulted on the payment due on April 20, 1998. Thereafter, in 1999, 2005, and 2011, Delta's successors-in-interest to the note and mortgage commenced three separate actions to foreclose the mortgage. The 1999 action N.A., as trustee for Delta Home Equity Loan Trust 1997–3. By order dated May 14, 2012, the Supreme Court granted the defendants' motion to dismiss the 2011 action as time-barred and declared the mortgage null and void.
On December 2, 2014, the plaintiff commenced this action (1) for a judgment declaring, under the doctrine of equitable mortgage, that the 1997 mortgage agreement constituted a valid and binding lien upon the property or, in the alternative, for a judgment declaring, under the doctrine of equitable subrogation, that the plaintiff had an equitable lien on the property of not less than $350,633.07, the amount of all liens extinguished at the time of closing, and (2) to recover a money judgment, pursuant to a theory of unjust enrichment, for not less than $187,354.94, representing the amount of real property taxes and hazard insurance premiums for the subject property paid by the plaintiff from June 1998 to the present. In connection with the commencement of the action, the plaintiff filed a notice of pendency dated December 2, 2014, against the property.
The defendants moved, inter alia, pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against them, and to cancel the notice of pendency filed against the property. The defendants argued that the complaint was barred by the six-year statute of limitations and, in any event, failed to state a cause of action to recover under theories of equitable mortgage, equitable subrogation, or unjust enrichment, and was barred by the doctrine of res judicata. With respect to the unjust enrichment cause of action, the defendants argued that the payments by the plaintiff for real property taxes and hazard insurance were unrecoverable since they constituted voluntary and gratuitous payments made by the plaintiff. The Supreme Court denied the defendants' motion. We reverse.
On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Bill Kolb, Jr., Subaru, Inc. v. LJ Rabinowitz, CPA, 117 A.D.3d 978, 979, 986 N.Y.S.2d 523 ; Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 1017, 912 N.Y.S.2d 590 ). Once this showing has been made, the burden shifts to the plaintiff to "aver evidentiary facts establishing that the action was timely or to raise an issue of fact as to whether the action was timely" ( Lessoff v. 26 Ct. St. Assoc., LLC, 58 A.D.3d 610, 611, 872 N.Y.S.2d 144 ; see Lake v. New York Hosp. Med. Ctr. of Queens, 119 A.D.3d 843, 844, 989 N.Y.S.2d 365 ). "The plaintiff has the burden of establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies" ( Lake v. New York Hosp. Med. Ctr. of Queens, 119 A.D.3d at 844, 989 N.Y.S.2d 365 ; see Marrero v. Sosinsky, 130 A.D.3d 883, 883, 12 N.Y.S.3d 891 ; Peykarian v. Yin Chu Chien, 109 A.D.3d 806, 807, 971 N.Y.S.2d 152 ).
Here, the defendants established, prima facie, that the causes of action seeking declarations that the plaintiff had a mortgage on the property under the doctrines of equitable mortgage and equitable subrogation were barred by the six-year statute of limitations. "In order to determine the Statute of Limitations applicable to a particular declaratory judgment action, the court must ‘examine the substance of that action to identify the relationship out of which the claim arises and the relief sought’ " ( The defendants also established, prima facie, that the unjust enrichment cause of action to recover money allegedly paid by the plaintiff for real property taxes and hazard insurance was time-barred with respect to any payment made by the plaintiff on or before December 2, 2008, six years prior to the commencement of this action (see Williams–Guillaume v. Bank of Am., N.A., 130 A.D.3d 1016, 1017, 14 N.Y.S.3d 466 ). In opposition, the plaintiff failed to raise an issue of fact (see Keles v. Hultin, 144 A.D.3d at 989, 42 N.Y.S.3d 60 ). Accordingly, that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss this cause of action with respect to any payment allegedly made by the plaintiff on or before December 2, 2008, should have been granted.
Although the unjust enrichment cause of action was timely with respect to payments allegedly made after December 2, 2008, the complaint fails to state a cause of action to recover these payments under a theory of unjust enrichment. "The elements of unjust enrichment are that the defendants were enriched, at the plaintiff's expense, and that it is against equity and good conscience to permit the defendants to retain what is sought to be recovered" ( County of Nassau v. Expedia, Inc., 120 A.D.3d 1178, 1180, 992 N.Y.S.2d 293 ; see Old Republic Natl. Tit. Ins. Co. v. Luft, 52 A.D.3d 491, 491–492, 859 N.Y.S.2d 261 ). "The essence of unjust enrichment is that one party has received money or a benefit at the expense of another" ( City of Syracuse v. R.A.C. Holding, 258 A.D.2d 905, 906, 685 N.Y.S.2d 381 ). However, "the voluntary payment doctrine ... bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law" ( Dillon v. U–A Columbia Cablevision of Westchester, 100 N.Y.2d 525, 526, 760 N.Y.S.2d 726, 790 N.E.2d 1155 ; see Gimbel Bros. v. Brook Shopping Ctrs., Inc., 118 A.D.2d 532, 535–536, 499 N.Y.S.2d 435 ). Here, no fraud or mistake is alleged. Instead, the complaint alleges that the plaintiff advanced funds for the Under the circumstances of this case, the defendants are also entitled to cancellation of the notice of pendency.