Opinion
Index No. 523952/2017 Mot. Seq. No. 4
03-29-2024
PENNYMAC CORP., Plaintiff, v. ALI KHAN a/k/a ALI U. KHAN, a/k/a ALI UDDIN KHAN; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT . ADJUDICATION BUREAU; CITIMORTGAGE, INC.; EMPIRE PORTFOLIOS INC.; JPMORGAN CHASE LEGAL DEPARTMENT; NYC BUREAU OF HIGHWAY OPERATIONS; NEW YORKK CITY ENVIRONMENTAL CONTROL BOARD; 230 HART STREET INC.; KNIGHTBRIDGE MORTGAGE BANKERS, LLC; HART 230 INC.; CITY OF NEW YORK; "JOHN DOES" and "JANE DOES", said names being fictitious, parties intended being possible tenants or occupants of premises and corporations, other entities or persons who have, claim or may claim, a lien v. or other interest in, the premises, Defendants.
Unpublished Opinion
Oral Argument Held: March 26, 2024
PRESENT: HON. DEREFIM B. NECKLES, A.J.S.C.
ORDER
HON. DEREFIM B. NECKLES, A.J.S.C.
The following papers read on Plaintiffs motion (motion sequence number 3) for an Order: (a) Confirming the Referee's Report made in accordance with RPAPL §1321; (b) Granting a Judgment of Foreclosure and sale pursuant to RPAPL §1351; (c) Directing the distribution of the sale proceeds pursuant to RPAPL § 1354; and (d) Reforming the mortgage to reflect the correct zip code of the property: NYSCEF Doc. Nos. 130-158; 185-186; and 188-198.
The following papers read on Defendant 230 Hart Street, Inc. 's motion (motion sequence number 4) for an Order pursuant to: (a) CPLR 2221(e) granting Defendant leave to renew Plaintiffs motion for summary judgment (Motion Sequence No. 1) and Defendant's cross-motion for summary judgment (Motion Sequence No. 2) and upon such renewal, vacating the Order of Reference dated February 18, 2020 [NYSCEF Doc! No. 117] and the Order dated February 18, 2020 [NYSCEF Doc. No. 118] and substituting therefor an order denying Plaintiffs motion for summary judgment and granting Defendant's cross-motion for summary judgment; and (b) CPLR 6514(a) cancelling the Notice(s) of Pendency: NYSCEF Doc. Nos. 160-163; 168-169; 172-184; and 187-199.
Defendant's motion (motion sequence #3) is granted in its entirety. The commencement of the 2008 foreclosure action on May 28, 2008 accelerated the debt and triggered the six-year statute of limitations on an action to foreclose the mortgage. See CPLR 213(4). Defendant demonstrated, prima facie, that the instance foreclosure action was commenced more than six years later, on December 13, 2017.
Under the Foreclosure Abuse Prevention Act (Laws 2022, ch. 821)("FAPA"), the discontinuance of the 2008 foreclosure action did not reset the statute of limitations. See CPLR 3217(e); HSBC Bank USA, N.A. v Islam, 221 A.D.3d 672, 673 [2d Dept 2023] ("[T]he voluntary discontinuance of the 2008 foreclosure action did not serve to reset the statute of limitations"). Moreover, under FAPA, the purported de-acceleration letter did not reset the statute of limitations. See CPLR 203(h); US Bank Trust, N.A. v Reizes, 222 A.D.3d 907, 910 [2d Dept 2023] ("[Pursuant to CPLR 203, as amended by [FAPA], the unilateral de-acceleration letter allegedly sent to the defendant failed to revive or reset the statute of limitations"). Accordingly, the instant foreclosure action is barred by the six-year statute of limitations. See Islam, 221 A.D.3d at 673; Reizes, 222 A.D.3d at 910.
Contrary to Plaintiffs contention, FAPA applies retroactively. See Cenovese v Nationstar Mtge. LLC, 223 A.D.3d 37, 45 [1st Dept 2023] ("Ultimately, the Legislature's goal, expressed in the language of FAPA and its legislative history, was to see FAPA applied retroactively").
Contrary to Plaintiffs contention, the dismissal of the prior quiet title action (commenced pre-FAPA by Defendant and dismissed prior to the passage of FAPA) is not res judicata or collateral estoppel as to Defendant's instant motion to renew its summary judgment motion to'dismiss the instant foreclosure action as barred by the statute of limitations. See Nationstar Mtge v 1027 Belmont Ave. LLC, Index No. 521875/2021 [Sup Ct Kings County May 23, 2023] [Martin, J.] ("the intervening change in law-FAPA-prevents the estoppel from attaching"); see generally Matter of Meegan S. v Donald T., 64N.Y.2d751, 752 [1984] ("The earlier decision may be a conclusive adjudication of the petitioner's rights, existing then; it cannot be an adjudication of rights thereafter conferred by law").
The doctrine of "law of the case" does not bar a motion to renew under CPLR 2221(e) based on an intervening change in law, and hence neither the February 2020 summary judgment order nor the February 2020 order of reference preclude Defendant's motion to renew under FAPA. See U.S. Bank Tr., N.A. as Tr. for LSF9 Master Participation Tr. v Miele, 80 Misc.3d 839, 842 [Sup Ct Westchester County 2023]; see generally Spodek v Neiss, 200 A.D.3d 952, 953 [2d Dept 2021] ("The law of the case doctrine does not prevent a proper motion for leave to renew under CPLR 2221"). The instant motion is timely, as no judgment of foreclosure and sale has been enforced in this action. See FAPA §10; Whitmarsh v Farnell, 298 NY 336, 345 [1949]; Tegregh Realty Corp v Joyce, 88 A.D.2d 820 [1st Dept 1982], Plaintiff fails to sustain its burden of demonstrating the unconstitutionality of the retroactive application of FAPA beyond a reasonable doubt. See Ditech Fin. LLC v Naidu, 2023 NY Slip Op 23370 [Sup Ct Queens County Oct. 18, 2023]; U.S. Bank Tr., N.A. as Tr. for LSF9 Master Participation Tr. v Miele, 80 Misc.3d 839 [Sup Ct Westchester County 2023].
The dismissal of this action against defendant, the fee owner of the property, mandates the dismissal of this action as to all defendants, as the fee owner is an indispensable party to a foreclosure action. See LaSalle Bank, NA v Benjamin, 164 A.D.3d 1223, 1225 [2d Dept 2018] ("Once the complaint was dismissed against Chittra [a fee owner of the property], the plaintiff could not continue the action against the other defendants"); CPLR 1003; RPAPL 1311(1).
In view of the dismissal of this action, Plaintiffs motion (MSN 4), for, inter alia, confirmation of the Referee's Report of Amount Due and a judgment of foreclosure and sale, is denied in its entirety.
The Clerk shall cancel the Notice(s) of Pendency of record. See Bayview Loan Servicing, LLC v Starr-Klein, 193 A.D.3d 807, 808 [2d Dept 2021 ].
Accordingly, it is hereby
ORDERED that Defendant 230 Hart Street Inc's motion (motion sequence number 4) is granted in its entirety, and it is further
ORDERED that Plaintiffs motion (motion sequence number 3) is denied in its entirety; and it is further
ORDERED that the complaint be and hereby is dismissed against Defendant 230 Hart Street Inc. as barred by the statute of limitations; and it is further
ORDERED that this action be and hereby is dismissed against all remaining defendants, in that the Court cannot proceed in the absence of Defendant, an indispensable party; and it is further
ORDERED that the Clerk of the Court be and hereby is directed to cancel the Notice(s) of Pendency at NYSCEF Doc. Nos. 3, 124 & 166 of record.
This constitutes the decision and order of the Court.