Opinion
No. 2021-04649 Index No. 58634/19
05-22-2024
Stephen Collins, et al., appellants, v. Bank of New York Mellon, etc., respondent.
Clair Gjertsen & Weathers, PLLC, White Plains, NY (Erin K. Flynn of counsel), for appellants. McCalla Raymer Leibert Pierce, New York, NY (Brian P. Scibetta and Adam Weiss of counsel), for respondent.
Clair Gjertsen & Weathers, PLLC, White Plains, NY (Erin K. Flynn of counsel), for appellants.
McCalla Raymer Leibert Pierce, New York, NY (Brian P. Scibetta and Adam Weiss of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P. JOSEPH J. MALTESE WILLIAM G. FORD LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated June 11, 2021. The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint and denied the plaintiffs' cross-motion for summary judgment on the complaint.
ORDERED that the order is reversed, on the law, with costs, the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint is denied, and the plaintiffs' cross-motion for summary judgment on the complaint is granted.
In June 2010, Bank of New York Mellon (hereinafter BNYM) commenced an action against Stephen Collins and Elizabeth Collins (hereinafter together the plaintiffs), among others, to foreclose a mortgage encumbering residential property located in Rye (hereinafter the 2010 action). In June 2012, BNYM moved for leave to enter a default judgment and for an order of reference. In an order dated September 28, 2012, the Supreme Court denied BNYM's motion and, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c). In June 2016, BNYM commenced a second action to foreclose the mortgage (hereinafter the 2016 action). In an order dated November 13, 2017, the court directed dismissal of the complaint in that action as abandoned after BNYM failed to comply with the court's directives to take proceedings for the entry of a default judgment.
In June 2019, the plaintiffs commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, alleging that the statute of limitations had expired. BNYM interposed an answer. After a change of counsel, BNYM filed a notice of appeal from the order dated September 28, 2012, in the 2010 action. Additionally, in October 2020, BNYM commenced a third action to foreclose the mortgage (hereinafter the 2020 action). BNYM then moved in this action pursuant to CPLR 3211(a) to dismiss the complaint, arguing that in light of the pending appeal from the order dated September 28, 2012, the 2010 action had yet to terminate, and a new action could still be timely commenced under CPLR 205(a). The plaintiffs opposed the motion and cross-moved for summary judgment on the complaint, arguing that CPLR 205(a) was inapplicable because the complaint in the 2010 action was dismissed for neglect to prosecute. In an order dated June 11, 2021, the Supreme Court granted BNYM's motion and denied the plaintiffs' cross-motion. The plaintiffs appeal.
RPAPL 1501(4) provides 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 having an estate or interest in the real property subject to such encumbrance 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" (see Bank of Am., N.A. v Scher, 205 A.D.3d 985, 987). An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]; Kashipour v Wilmington Sav. Fund Socy., FSB, 144 A.D.3d 985, 986; Nationstar Mtge., LLC v Weisblum, 143 A.D.3d 866, 867). "'[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt'" (Nationstar Mtge., LLC v Weisblum, 143 A.D.3d at 867, quoting EMC Mtge. Corp. v Patella, 279 A.D.2d 604, 605). "An acceleration of a mortgage debt can occur when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due" (Wells Fargo Bank, N.A. v Lefkowitz, 171 A.D.3d 843, 844 [internal quotation marks omitted]).
Here, the plaintiffs established, prima facie, that the mortgage debt was accelerated on June 17, 2010, when BNYM commenced the 2010 action and elected to call due the entire amount secured by the mortgage in the complaint (see U.S. Bank N.A. v Outlaw, 217 A.D.3d 721, 722; U.S. Bank N.A. v Doura, 204 A.D.3d 721, 723). The plaintiffs further demonstrated, prima facie, that the 2016 action, while timely commenced, had been dismissed as abandoned, and that at the time they commenced this action pursuant to RPAPL 1501(4), any new action to foreclose the mortgage would be time-barred (see CPLR 213[4]).
In support of its motion and in opposition to the plaintiffs' cross-motion, BNYM acknowledged that the mortgage debt was accelerated in June 2010, but argued that a new action to foreclose the mortgage could still be commenced pursuant to the savings provision of CPLR 205(a). BNYM contends that its appeal from the order dated September 28, 2012, inter alia, directing dismissal of the complaint in the 2010 action had the effect of preventing that action from terminating within the meaning of the statute. BNYM further contends that although the 2010 action was dismissed under CPLR 3215(c), such a dismissal was not for neglect to prosecute as contemplated by the statutory exceptions to the application of CPLR 205(a). However, contrary to BNYM's contention, "[f]or CPLR 205(a) purposes, an action from which no appeal has been taken is considered terminated 30 days after entry of a court's order of dismissal" (Specialized Loan Servicing Inc. v Nimec, 183 A.D.3d 962, 965). Here, the order dated September 28, 2012, was entered on October 3, 2012, and BNYM failed to appeal from the order before the 2010 action terminated 30 days later.
Moreover, BNYM's contention that it was entitled to rely upon the savings provision of CPLR 205(a), despite the dismissal of the 2010 action pursuant to CPLR 3215(c), is precluded by the recently enacted Foreclosure Abuse Prevention Act (L 2022, ch 821 [eff Dec. 30, 2022]; hereinafter FAPA). FAPA specifically defines a dismissal pursuant to CPLR 3215 as a form of neglect that precludes a plaintiff from taking advantage of the six-month savings provision (see id. § 205-a[a]).
Accordingly, the Supreme Court should have denied BNYM's motion pursuant to CPLR 3211(a) to dismiss the complaint and granted the plaintiffs' cross-motion for summary judgment on the complaint.
CONNOLLY, J.P., MALTESE, FORD and LOVE, JJ., concur.