Plaintiff v. Theresa A. Tovar a/k/a Thresa Tovar; et al., Defendants, 61092/2014
Decided: December 22, 2014
Attorneys for Richard J. Klein DDS, P.C.: Farber Rosen & Kaufman P.C., Rego Park, NY.
PLAINTIFF'S INSTANT "2014" FORECLOSURE ACTION
DECISION & ORDER
[2d Dept 2013].
hard-pressed to find or imply an intent on the part of the Plaintiff to revoke any prior acceleration of the Consolidated Note and Mortgage herein; especially, when such assertion is not supported by an Affidavit of an individual with personal knowledge of the facts surrounding said alleged revocation.
Contrary to Plaintiff's contention, the listing of a mortgage as a secured debt on a bankruptcy petition does not, in and of itself, constitute and affirmative act to re-acknowledge a debt under GOL §17-105 (1). Erlichman v. Ventura, 271 AD2d 481, 482 [2d Dept 2000] ("[T]he listing of the debt on [defendant's] bankruptcy petition did not constitute written acknowledgment of the debt with the intent to pay so as to remove any Statute of Limitations bar to recovery.") (internal citations omitted); see Saini, 289 AD2d at 772 ("[T]he fact that defendant listed this mortgage on its schedule of secured claims on its disclosure statement to its bankruptcy petition did not constitute a promise to pay the mortgage so as to renew or extend the Statute of Limitations but, rather, signified defendant's intent not to pay it.") (internal citations omitted); accord Petito v. Piffath, 85 NY2d 1, 8-9 , cert denied 516 US 864 .
3. Despite Plaintiff's concession to the October 4, 2013 date, this Court finds that the Statute of limitation period expired on October 3, 2013. This difference, however, proves inconsequential for this particular analysis.