Opinion
Index No. 615953/2023
01-23-2024
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-AB3, Plaintiff, v. KATHY ROGES-GRECH AKA KATHY GRECH, CLERK OF THE SUFFOLK COUNTY TRAFFIC & PARKING VIOLATIONS AGENCY, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, STATE OF NEW YORK CIVIL RECOVERIES BUREAU, JOHN DOE, Defendants.
ATTORNEY FOR PLAINTIFF: Gross Polowy, LLC Brian D. Goldberg, Esq. ATTORNEY FOR DEFENDANTS: Maggio & Meyer Holly C. Meyer, Esq.
Unpublished Opinion
ATTORNEY FOR PLAINTIFF: Gross Polowy, LLC Brian D. Goldberg, Esq.
ATTORNEY FOR DEFENDANTS: Maggio & Meyer Holly C. Meyer, Esq.
PRESENT: HON. PAUL M. HENSLEY, AJSC.
Hon. Paul M. Hensley Acting Justice.
Upon the following papers read on defendant Kathy Rogues-Grech's motion to dismiss pursuant to CPLR § 3211 (a) (5): NYSCEF documents 1 thru 49; it is hereby
ORDERED defendant's motion to dismiss pursuant to CPLR § 3211 (a) (5) on the grounds that the statute of limitations has expired is denied; and it is further
ORDERED the parties shall appear on March 6, 2024, in Part 70. IN PERSON, 210 Center Drive Riverhead. New York 11901 at 9:30 a.m. for a conference.
On June 16, 2016, plaintiff commenced a residential foreclosure action against the moving defendant by the serving of a summons and complaint under Index Number 609118/2016. On July 14, 2022, plaintiff moved to discontinue that action. By order dated October 5, 2022, (Modelewski, J.) the motion to discontinue was granted. On June 28. 2023, plaintiff initiated this second action by the filing of a summons and complaint. Defendant Kathy Rogues-Grech now moves to dismiss maintaining that the six year statute of limitations (CPLR § 213 [4]) has expired.
The statute of limitations begins to run at the commencement of a foreclosure action (CPLR § 203). Here, the loan was accelerated on June 16, 2016. Defendant's position on this motion is that, therefore, the statute of limitations expired on June 15, 2022, one year and two weeks before this action was filed.
In opposition, plaintiff advises that defendant Kathy Roges-Grech filed bankruptcy on November 9, 2017, until February 22, 2018. This 105 day bankruptcy stay tolls the statute of limitations deadline (see CPLR § 204 [a]; Lubonty v U.S. Bank N.A., 159 A.D.3d 962, 74 N.Y.S.3d 279 [2d Dept 2018]). Additionally, during COVID-19 Governor Andrew M. Cuomo issued a series of Executive Orders (Executive Orders 202.8, et al) which tolled all statutes for two hundred and twenty-eight days from March 20, 2020 through November 3, 2020. In Brash v Richards, 195 A.D.3d 582,149N.Y.S.3d 560 (2d Dept 2021) the Appellate Division explained the Executive Orders collectively add 228 days to filing deadlines. Finally, defendant filed a hardship affidavit on May 6. 2021. That action stayed the foreclosure action through January 14. 2022, for an additional 253 days.
Considering the 586 days of tolling, the statute of limitations here does not expire until, at its earliest. January' 22, 2024. Accordingly, defendant's motion is denied.