A predecessor in interest of the plaintiff gave a mortgage on real property in favor of a predecessor in interest of defendant ResCap Liquidating Trust. An action to foreclose the subject mortgage was commenced in 2005. A separate action to foreclose the subject mortgage was commenced in 2008. The 2008 action was discontinued by stipulation, that same year, based on the pendency of the 2005 action. Ultimately, in the 2005 action, a predecessor in interest of the plaintiff was awarded summary judgment dismissing the amended complaint insofar as asserted against him, without prejudice, based on lack of standing.

In 2016, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record certain mortgages, including the subject mortgage. The plaintiffs moved for summary judgment on the first cause of action seeking to cancel and discharge of record the subject mortgage. The defendant cross-moved for summary judgment dismissing the amended complaint.

RPAPL 1501(4) provides, in part, that “[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage … has expired,” any person with an estate or interest in the property may maintain an action to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom.’ An action to foreclose a mortgage is subject to a six-year statute of limitations. A lender may revoke its election to accelerate the mortgage but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action.

The plaintiffs established their prima facie entitlement to judgment as a matter of law on the first cause of action pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage by demonstrating that more than six years had passed since the subject mortgage was accelerated by commencement of the 2008 action.

The defendant failed to raise a triable issue of fact in opposition. the stipulation discontinuing the 2008 action did not, in itself, constitute an affirmative act to revoke the acceleration since the stipulation was silent on the issue of revocation of the election to accelerate and did not otherwise indicate that installment payments would be accepted.

The plaintiff acquired title to premises being used as a golf club by deed in lieu of foreclosure in 2013. The premises comprises four plots of land subject to use restrictions, two of which were at issue on this appeal. Two deeds, dated August 19, 1941, and January 14, 1953, transferred their respective lots “for so long as” each was used “for golf club purposes, and for no other purposes.” Should either lot “ever cease to be used … for golf club purposes,” then “the estate granted … shall thereupon become void, and title to said lands shall revert back” to the grantors or the grantors’ successors in interest, “who thereupon may enter said lands as if this conveyance had never been made.” The appellate division held the deeds established a possibility of reverter which could be freely assigned and alienated, as opposed to a right of reacquisition, which is a future estate left in the creator or in his or her successors in interest upon the simultaneous creation of an estate on a condition subsequent. Unlike a possibility of reverter, a right of reacquisition is rendered void at common law if an attempt is made to assign it.

Original mortgage was not recorded and lost. Statute of limitations to seek to record a copy of the instrument had lapsed. Lender made a demand on the borrower pursuant to the mortgage to re-execute the mortgage. Borrower refused and the lender commenced an action in equity to compel borrower to re-execute mortgage for recording. Appellate Division held the statute of limitations to compel borrower to re-execute mortgage began to run from the date of the borrower’s refusal and the claim in equity was not time-barred.