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- 3 568 Secured Asset Management, LLC v. Cong. Beth Joseph Zwi Dushinsk y



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square , in the City of 2 New York, on the 1 3 t h da y of N o v e m b e r , two thousand twenty. 3 4 PRESENT: 5 JOSÉ A. CABRANES
, 6 BARRINGTON D. PARKER , 7 MICHAEL H. PARK , 8 Circuit Judges. 9

_____________________________________ 10 11 Secured Asset Management, LLC , 12 13 Plaintiff

- Appellee , 14 15

v. 19

- 3568 16 17 Cong. Beth Joseph Zwi Dushinsky, as 18 assignee of Congregation Beth Joseph 19 Zwi Dushinsky, Eli Katz, 20 21 Defendants

- Appell ants, 22 23 New York City Environmental Control Board, 24 25 Defendant. * 26 27

_____________________________________ 28

* The Clerk of Court is respectfully directed to amend the caption of this matter as above.2 1 F OR PLAINTIFF

- APPELLEE : L EO V

. L EVYA (Jed M. Weiss, on the brief ), 2 Cole S c hotz P.C., New York, NY

. 3 4 F OR DEFENDANT S

- APPELL ANTS : P AUL H. A LOE , Kudman Trachten Aloe 5 LLP
, New York, NY. 6 7 Appeal from a judgment of the United States District Court for the Eastern District of New 8

York ( Irizarry
, J

. ). 9

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 10

DECREED that the judgment of the district court is AFFIRME D

. 11
Secured Asset Management, LLC (“SAM”) brought this action against Congregation Beth 12
Joseph Zwi Dushinsky (the “Congregation”) to foreclose on a property located at 135 Ross Street, 13
Brooklyn, NY. The district court granted summary judgment to SAM and o rdered that a referee 14
be appointed to compute the amount due and to conduct a foreclosure sale. The Congregation now 15
appeals. For the reasons stated in this order, we affirm the judgment of the district court. We 16
assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. 17
First, the Congregation argues that SAM cannot foreclose because it did not provide a valid 18
“notice to cure” as required by the mortgage agreement. Under P aragraph 25 of the mortgage 19

agreement, “the whole of the principal sum and interest secured hereby shall become due” upon 20
“the default in the payment of any installment of principal or interest .

. . following notice to cure 21
such default .” App’x at 56 (emphasis added)

. As relevant here, o n June 22, 2017
, SAM sent a 22
notice demanding the entire accelerated principal of the mortgage plus interest and other charges. 23

The notice stated that the Congregation had “defaulted on [its] payment obligations .

. . by failing 24
to make payment of the full a mounts due under the Mortgage beginning on December 1, 2009, 25
and continuing to the date of this Notice.” The Congregation contends that this notice did not 26
satisfy P aragraph 25 “ because it made no reference whatsoever to an installment payment default.” 273 The district court correctly rejected this argument. Nothing in Paragraph 25 requires the 1

notice to cure to specify the payments on which the Congregation defaulted

. On its face, the phrase 2
“notice to cure such default” requires SAM to give the Congregat ion notice that it is in default and 3

that it can still cure the default. C f. Carvel Corp. v. Diversified Mgmt. Grp., Inc. , 930 F.2d 228, 4

233 (2d Cir. 1991) (holding that a creditor complied with the “notice and cure provisions” of a 5
security agreement whe n it “ gave [the debtor] explicit notice of its failure to make payments on 6
the promissory notes ”). Paragraph 25 does not require a notice to cure to list or to specify which 7

payment s are in default, and the Congregation offers no compelling reason why we should read 8
such a requirement into the mortgage agreement. The Congregation’s argument that the notice to 9
cure was inadequate is particularly unpersuasive in light of the fact that it has defaulted on every 10
single monthly payment since December 2009 and has been engaged in litigation over its 11
nonpayment since 2010

. We agree with the district court that SAM’s notice to cure was valid

. 12

Second, the Congregation argues that New York’s six

- year statute of limitations bars this 13

foreclosure action because SAM’s predecessor

- in

- interest accelerated the entire loan amount in 14

2010 and SAM did not file this lawsuit until 2017

. See N.Y. C.P.L.R. § 213(4) ; Cannell v. Grail 15

Partners, LLC , 118 N.Y.S.3d 593, 59 6 (App. Div. 2020) (“ Acceleration causes those future 16

in stallment payments that are not yet due and payable to become immediately due and payable

. . . 17

and thus, the statute of limitations runs on the balance of the debt

. ”). But the Congregation 18
successfully took the opposite position in previous state

- court l itigation, so the district court 19
properly rejected this argument under the principle of judicial estoppel. See Rodal v. Anesthesia 20
Grp. of Onondaga, P.C. , 369 F.3d 113, 118 (2d Cir. 2004) (“ The doctrine of judicial estoppel 21
prevents a party from asserting a factual position in one legal proceeding that is contrary to a 22
position that it successfully advanced in another proceeding. ”). During that previous litigation, 234 the Congregation stated that it did not receive a notice to cure in 2010, and that such notice would 1
have afforded them the “ability to cure [their] default prior to the acceleration of the entire loan.” 1 2
App’x at 154 (emphasis added). The Congregation cannot now reverse its position and argue that 3

the loan was in fact accelerated in 2010 even though the notice was invalid. 2 See Rodal , 369 F.3d 4

at 118. 5

We have considered the remainder of the Congregation’s arguments and find them to be 6

without merit. For the foregoing reasons, we AFFIRM the judgment of the district court

. 7

FOR THE COURT: 8 Catherine O ’ Hagan Wolfe, Cler k of Court 9

1 The Congregation claims that the 2010 notice to cure accelerated the note secured by the mortgage agreement but not the mortgage agreement itself because only th e mortgage agreement contained the notice

to

- cure clause. But the language of the note make s clear that the notice

- to

- cure provision in Paragraph 25 of the mortgage agreement applies to both documents. App’x at 45 ( “All of the covenants, conditions and p rovisions of the mortgage and any other agreements securing the mortgage and note are hereby made a part of this note.”).

2 The Congregation may still argue before the referee that the statute of limitations bars SAM from collecting on specific monthly ins tallments that came due more than six years before SAM filed this action. See Deutsche Bank Nat ’ l Tr. Co. v. Gordon , 117 N.Y.S.3d 688, 690

– 91 (App. Div. 2020) (“With respect to a mortgage payable in installments, separate causes of action accrue for each installment that is not paid, and the statute of limitations begins to run on the date each installment becomes due.”).