Bank of Am., N.A. v. Russell

Bank of Am., N.A. v Russell 2026 NY Slip Op 05759 October 7, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Bank of America, N.A., respondent, v Paul M. Russell, et al., appellants, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 7, 2026 2025-05702, (Index No. 604241/23) Mark C. Dillon, J.P. Valerie Brathwaite Nelson Laurence L. Love James P. McCormack, JJ. Ray E. Shain, Williston Park, NY, for appellants. Hinshaw & Culbertson LLP, New York, NY (Ali Degan and Schuyler B. Kraus of counsel), for respondent. [*1] DECISION & ORDER In an action to foreclose a mortgage, the defendants Paul M. Russell and Louise Russell appeal from an order of the Supreme Court, Nassau County (Danielle M. Peterson, J.), entered April 3, 2025. The order, insofar as appealed from, denied that branch of those defendants' motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against them as time-barred. ORDERED that the order is affirmed insofar as appealed from, with costs. In January 2008, Teresa Russell (hereinafter the borrower) executed an adjustable rate note secured by a reverse mortgage on certain real property located in Westbury (hereinafter the property). The note provided, among other things, that the outstanding balance would become immediately due if the property ceased to be the borrower's principal residence. In 2023, the plaintiff commenced this action to foreclose the mortgage against, amongst others, the defendants Paul M. Russell and Louise Russell (hereinafter together the defendants), who are the borrower's son and daughter-in-law, respectively, as the alleged record owners of the property. The plaintiff alleged, inter alia, that the borrower had defaulted under the terms of the note and reverse mortgage in that the property had ceased to be her principal residence. After issue was joined, the defendants moved, among other things, in effect, for summary judgment dismissing the complaint insofar as asserted against them as time-barred. The defendants asserted that the property ceased to be the borrower's principal residence in September 2008 when she moved into a nursing home or, at the latest, in December 2009, and that the six-year statute of limitations expired prior to the commencement of this action. The plaintiff opposed the motion, contending that the action was timely commenced or, in the alternative, that the defendants should be equitably estopped from invoking the statute of limitations defense. The plaintiff submitted, among other documents, annual occupancy certifications sent to it each year from 2011 to 2019, signed by the borrower, which certified that the borrower continued to occupy the property as her principal residence. In an order entered April 3, 2025, the Supreme Court, inter alia, denied that branch of the defendants' motion which was, in effect, for summary judgment dismissing the complaint [*2]insofar as asserted against them as time-barred, determining that the defendants are equitably estopped from invoking the statute of limitations defense. The defendants appeal. Assuming, without deciding, that the defendants established, prima facie, that this action was not timely commenced, the Supreme Court correctly determined that the defendants are equitably estopped from invoking the statute of limitations defense. "The doctrine of equitable estoppel applies where it would be unjust to allow a defendant to assert a statute of limitations defense" (Zumpano v Quinn, 6 NY3d 666, 673). Thus, the defense of statute of limitations may be precluded where it is the defendant's affirmative wrongdoing that produced the long delay between the accrual of the cause of action and the commencement of the legal proceeding (see id.; North Coast Outfitters, Ltd. v Darling, 134 AD3d 998, 999; Tampa v Delacruz, 77 AD3d 910, 911). "Equitable estoppel is appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the defendant" (Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553; see Zumpano v Quinn, 6 NY3d at 674). "It is . . . fundamental to the application of equitable estoppel for plaintiffs to establish that subsequent and specific actions by defendants somehow kept them from timely bringing suit" (Zumpano v Quinn, 6 NY3d at 674; see North Coast Outfitters, Ltd. v Darling, 134 AD3d at 999). In general, "the question of whether a defendant should be equitably estopped is . . . a question of fact" (Putter v North Shore Univ. Hosp., 7 NY3d at 553). Here, however, the defendants' admissions in their moving papers, together with the plaintiff's submissions in opposition to the motion, demonstrated that the plaintiff's delay in the commencement of this action was the result of the defendants' misconduct during the limitations period and, as such, that equitable estoppel is appropriate as a matter of law. Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against them as time-barred. DILLON, J.P., BRATHWAITE NELSON, LOVE and MCCORMACK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court