On August 7, 2024, the Second Department issued a decision in Comito v. Z & N Enters. Corp., 2024 NY Slip Op. 04124, holding that by making a mortgage payment, a borrower revived the statute of limitations on a claim for failure to pay the mortgage, explaining:
A partial payment on account of the indebtedness secured by a mortgage, is effective to revive an action to recover such indebtedness in favor of the mortgagee, provided that the payment was accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder. Here, the plaintiffs submitted, among other things, evidence that Tarazi had affirmed (in an unrelated action) that he had made payment on the mortgage by check payable to Comito in the amount of $1,087, on June 23, 2014. Furthermore, the plaintiffs averred to having received partial payments after maturation of the notes, as late as 2015. However, the plaintiffs’ evidence did not establish to which of the three mortgages these payments related. Accordingly, triable issues of fact exist as to whether the statute of limitations was renewed as to any of the mortgages.
The Supreme Court, therefore, properly denied the defendants’ motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.
(Internal quotations and citations omitted).