630 6A LLC v. BANK TRUST NATIONAL ASSOCIATION (2025)

Amended order, Supreme Court, New York County (Suzanne Adams, J.), entered on or about July 25, 2024, which granted plaintiff 630 6A LLC's (6A LLC) cross-motion for summary judgment pursuant to CPLR 3211(c) to secure the cancellation and discharge of a mortgage held by defendant U.S. Bank Trust National Association as Trustee of the Cabana Series IV Trust, and denied Cabana's motion to dismiss the quiet title action for failure to state a cause of action, unanimously affirmed, without costs.

6A LLC commenced this quiet title action under RPAPL 1501(1) and 1501(4).  The first section, section 1501(1), allows claimants to “compel the determination of any claim adverse to that of the plaintiff which the defendant ․ might make[ ].” The second section, 1501(4), allows claimants to maintain an action where “the applicable statute of limitation for the commencement of an action to foreclose a mortgage, or to enforce a vendor's lien, has expired.”  Since an action is not considered terminated until appeals as of right have been exhausted (Davis v. Wilmington Sav. Fund Socy., FSB, 219 A.D.3d 798, 799, 195 N.Y.S.3d 494 [2d Dept. 2023]), the 2013 foreclosure action could not be considered terminated for purposes of RPAPL 1501(4) until January 14, 2021, when this Court dismissed the action on procedural grounds (MTGLQ Invs., L.P. v. Shay, 190 A.D.3d 527, 528, 140 N.Y.S.3d 496 [1st Dept. 2021], lv denied 37 N.Y.3d 908, 2021 WL 4164320 [2021]).  Thus, the 2021 foreclosure action, commenced on July 2, 2021, which was eight years after the limitations period had begun to run, was untimely and could not be saved by the six-months savings provision of CPLR 205–a.

CPLR 205–a provides that it is applicable when a timely-commenced action has been dismissed on grounds other than “a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for any form of neglect, including, but not limited to those specified in subdivision three of section thirty-one hundred twenty-six, section thirty-two hundred fifteen, rule thirty-four hundred sixteen and rule thirty four hundred four of this chapter” (CPLR 205–a[a]).  These statutory exemptions, which have been applied retroactively (see Bank of New York Mellon v. Del Rio, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 06293 [1st Dept. 2024]), leave the 2021 foreclosure action outside the boundaries of CPLR 205–a, as the 2013 foreclosure action was dismissed pursuant to CPLR 3215(c) and based on the absence of personal jurisdiction (see Wells Fargo Bank, N.A. v. Cafasso, 223 A.D.3d 695, 697, 203 N.Y.S.3d 166 [2d Dept. 2024]).

It was not procedurally impermissible for Supreme Court to correct its initial order sua sponte to correct a clerical error (see People v. Minaya, 54 N.Y.2d 360, 364, 445 N.Y.S.2d 690, 429 N.E.2d 1161 [1981], cert denied 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144 [1982]).  Nor was it impermissible to consider the quiet title action while the 2021 foreclosure action remained pending, as the action was dismissed as time-barred and 6A LLC was not permitted to intervene (compare Everhome Mtge. Co. v. Aber, 39 N.Y.3d 949, 950, 178 N.Y.S.3d 8, 198 N.E.3d 1289 [2022];  U.S. Bank, N.A. v. Fox, 216 A.D.3d 445, 446, 188 N.Y.S.3d 52 [1st Dept. 2023], lv denied 42 N.Y.3d 903, 2024 WL 4151858 [2024]).