Ata Part 70 of the Supreme Court of ‘The State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, ‘New York on the 22 day of January, 2016 PRESENT: HON. WAVNY TOUSSAINT, Justice RELY-ON-US, INC Index No: 501482/2015 Plaintiff, DECISION -against- ANTONIO TORRES, CARMEN TORRES, ET AL, Defendants. ‘The following papers numbered 1 to 3 read herein: Notice of Motion/Order to Show Cause/ and Affidavits (Affirmations) Annexed 1-3. Notice of Cross Motion/Order to Show Cause/ and Affidavits (Affirmations) Annexed 45. Opposing Affidavits (Affirmations) 6 Reply Affidavit (Affirmations) Defendants Antonio Torres and Carmen Torres move this court for an order, pursuantto CPLR § 3211(a)(1) and (5), dismissing the plaintiff foreclosure complaint, with prejudice, as barred by res judicata and the expiration of the statute of imitations. Plaintiff has cross moved seeking an order severing the plaintiff's claims on the Note, to reform theNote and to permit amendment of the complaint. Background This is an action to foreclose a mortgage on the premises known as 179 Richards Street, Brooklyn, New York. On July 7, 2006, the defendants executed a $7,000.00 note and mortgage relative to the subject property, in favor of Rely On Us, Inc. (no hyphens). ‘The mortgage was recorded in CREN 2006000460528 on August 15, 2006. Pursuant to the terms of the note, the entire note, plus interest , was due and payable on July 31, 2007. Having alleged that payment was not made pursuant to the note terms, Rely On Us, commenced a foreclosure action against the defendants, in Supreme Court, Kings County on August, 2012 (Index# 16154/12). Defendants moved to dismiss the complaint andsaid motion was granted, on default, as well as on the merits, by Justice Pfau, on October 26, 2012. No appeal was filed regarding this decision. In May, 2014, Rely On Us moved to vacate its default and to restore the action to the calendar. By order dated September 17, 2014, Justice Vaughan denied the application. In 2013, Antonio and Carmen Torres commenced an action, in Supreme Court, Kings County, seeking to quiet title and to cancel and discharge the mortgage in question (Index #14562/13). The Torres’ obtained a default judgment against Rely On Us on November 19, 2014. A Judgment and Order cancelling and discharging the mortgage in question was entered on April 8, 2015. Plaintiff commenced the instant action, seeking to reform the subject note, to indicate the proper name of the mortgagee, allegedly Rely-On-Us (with hyphens)and to foreclosure on the subject mortgage. Defendants now move to dismiss the complaint, with prejudice, as barred by res judicata and the expiration of the statute of imitations. Plaintiff -2-cross moves, seeking to sever the plaintiff's claims on the Note, to reform the Note and to permit amendment of the complaint to strike the names of unnecessary parties. Discussion CPLR § 213 states: The following actions must be commenced within six years: 1. 1, an action for which no limitation is specifically prescribed by law; 2. an action upon a contractual obligation or liability, express or implied, except as provided in section two hundred thirteen-a of this article or article 2 of the uniform commercial code or article 36-B of the general business law; 3. an action upon a sealed instrument; 4. an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or noteand mortgage so secured, or upon a mortgage of real property, or any interest therei 5. an action by the state based upon the spoliation or other misappropriation of public property; the time within which the action must be commenced shall be computed from discovery by the state of the facts relied upon; 6. an action based upon mistake; 7. an action by or on behalf of a corporation against a present or former director, officer or stockholder for an accounting, or to procure a judgment on the ground of fraud, or to enforce a liability, penalty or forfeiture, or to recover damages for waste or for an injury to property or for an accounting in conjunction therewith. 8, an action based upon fraud; the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it. The statute of imitations for recovery on a promissory note is six years. With regard toa mortgage paid in installments, there are separate causes of action for each installment accrued and the statute of limitations begins to run on the date that each installment‘becomes due, unless the debt is accelerated (Loiacono v Goldberg, 240 AD 2d 476 [2d Dept 19971). In the instant case, the defendant’s executed the installment note in question on July 7, 2006, The note was to be payable, in full, on July 31, 2007. The note included a final payment provision, which stated that the entire debt was due and payable on July 31, 2007. Thus, by the terms of the note, plaintiff had until July 31, 2013 to commence a foreclosure action. As this action was commenced on February 10, 2015, 18 months after the expiration of the statute of limitations, the action is untimely. (Zinker v Makler, 298 AD 2d 516 [2d Dept 20021). Pursuant to CPLR § 3211 (a)(1)(6), a cause of action may be dismissed if a defense is founded on documentary evidence, showing that the cause of action is barred by res judicata. Under the doctrine of res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred even if based on different theories or if seeking a different remedy (Eagle Insurance Co v Faceu, 272 AD2d 399 [2d Dept 2000], citing O’Brien v City of Syracuse, 54 NY2d 353 [1981]). A default judgment bars the litigation of issues that were or could have been determined in a prior action (Aisle National LLC v K & E Mechanical, 29 AD3d 901 [2d Dept 2006]. Inthe case at bar, Rely On Us (no hyphens) commenced a foreclosure action against the defendants in 2012, relative to a note and mortgage executed by the defendants on July 7, 2006, encumbering the premises known as 179 Richards Street, Brooklyn, New York. Defendants moved to dismiss that complaint and their motion was granted on default and onthe merits. Rely on Us’ motion to vacate their default was denied and no appeal was ever taken. Rely-On-Us commenced the instant foreclosure action against these same “4defendants, based on the same set of facts alleged in the 2012 foreclosure action commenced by Rely On Us (no hyphens), seeking to foreclose the same mortgage. Under the theory of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction orseries of transactions of a cause of action that either was raised or could have been raised in the prior proceeding (Pedote v STP Associates, LLC, 124 AD3d 856 [2d Dept 2015]). As the 2012 dismissal of the foreclosure action was both on default ad on the merits, Rely-On- Us cannot now maintain its current action. Moreover, it appears that the two entities are in privity, as they appear to speak one for the other. Accordingly, defendant's motion to dismiss the plaintiff's complaint is granted, as same is barred by res judicata and the statute of limitations. ‘The complaint is hereby dismissed. Plaintiff's cross motion, which seeks to sever the claims on the note is denied, as any claim the plaintiff had on the note was time barred at the time this action was commenced. All other relief sought by plaintiff is denied, as moot. That portion of the defendants’ motion seeking costs and attorneys fees, is denied, in the court's discretion. ‘This constitutes the decision and order of the court. ENTER