Susan Boreshesky, Plaintiff, v. LSF9 (2023)

Upon the following papers read on this e-filed motion to renew and reargue: Notice of Motion/Order to Show Cause and supporting papers (NYSCEF Doc. Nos.: 102-106); Answering Affidavits and supporting papers (NYSCEF Doc. Nos.: 107-124); and Replying Affidavits and supporting papers (NYSCEF Doc. No.: 125); it is

ORDERED that Plaintiff's motion (sequence no. 004) is denied.

Susan Boreshesky (hereafter the "Plaintiff") moves this court under CPLR § 2221(e) to renew and upon renewal, granting Plaintiff summary judgment discharging and vacating defendant's mortgage lien pursuant to RPAPL § 1501(4). U.S. Bank Trust N.A. (hereafter the "Defendant") opposes the application and Plaintiff replied.

On July 5, 2017, this Court (J. Rouse, A.J.S.C.) entered an Order denying Plaintiff's motion for summary judgment because, the Court held, she "failed to provide competent evidence that makes out a prima facie case that Household Finance [the plaintiff in the first foreclosure action commenced in 2010] had standing to accelerate the note alleged to be held by U.S. Bank." The October 16, 2017 order granted Defendant's motion to reargue its prior cross motion for partial summary judgment on the issue of liability for all amounts paid for taxes and insurance.

The two orders were appealed to the Second Department Appellate Division which reversed this Court and dismissed Plaintiff's complaint by its decision dated August 10, 2022 (the "Appellate Decision"). In its Appellate Decision, the Second Department relied on Freedom Mtge. Corp. v. Engel, 37 NY3d 1, 32, in holding that "Household's motion to voluntarily discontinue the foreclosure action, which was made less than six years after the foreclosure action was commenced, constituted an affirmative act of revocation of the acceleration of the mortgage debt as a matter of law absent evidence of an express, contemporaneous statement by Household to the contrary." The Appellate Decision concluded that this Court should have granted Defendant's motion for summary judgment and dismissed this case. [NYSCEF Doc. No. 100].

Notice of Entry of the Appellate Decision was served November 10, 2022 [NYSCEF Doc. No. 101], which gave Plaintiff until December 10, 2022 to appeal to the Court of Appeals. No appeal was filed. Thus, the Appellate Decision became a "final order" as of December 10, 2022.

Plaintiff's instant motion, dated February 22, 2023, seeks to renew not only the two orders this Court entered in 2017 and 2018 - but also the Appellate Decision which reversed this Court. It indeed appears illogical that this Court is authorized to vacate its appellate court decisions.

CPLR § 2221(e) was amended, effective July 20, 1999, by adding subdivisions (d),(e) and (f) to codify and clarify the rules governing motions for leave to reargue and renew which had evolved through case law (see, L. 1999, ch. 281; Mem. of Off. of Ct. Admin., 1999 NY Legis. Ann., at 158; Leg. Mem., 1999 McKinney's Session Laws of NY, at 1721—1722; Report of Advisory Committee, 1999 McKinney's Session Laws of NY, at 2065—2066). As relevant here, CPLR § 2221(e)(2) provides that a motion for leave to renew "shall demonstrate that there has been a change in the law that would change the prior determination." Consistent with case law, the amended statute does not impose a time limit for making a motion for leave to renew.

Before the amendment, a motion seeking relief from a prior order based on a change in the law was generally considered to be a motion for reargument (see, Matter of Huie [Furman], 20 NY2d 568, 285 NYS2d 610, rearg. denied 21 NY2d 880, 289 NYS2d 1029; Matter of Barnes [Council 82, AFSCME], 235 AD2d 826, 652 NYS2d 383; Foley v. Roche, 86 AD2d 887, 447 NYS2d 528). Ordinarily, such a motion, like all motions for leave to reargue, had to be made before the time to appeal the prior order had expired (see, Matter of Huie [Furman], supra; Matter of Barnes [Council 82, AFSCME], supra). Certain exceptions to this general rule evolved where the case was still pending, either in the trial court or on appeal (see, Matter of Barnes [Council 82, AFSCME], supra; Bray v. Gluck, 235 AD2d 72, 663 NYS2d 725; Foley v. Roche, supra).

Where, however, judgment had been entered and no appeal was pending, case law held that a motion for leave to reargue based on a change in the law should not be granted (see, Matter of Huie [Furman], supra; Bray v. Gluck, supra; see also, Deeves v. Fabric Fire Hose Co., 19 AD2d 735, 242 NYS2d 955, affd. 14 NY2d 633, 249 NYS2d 423). As noted by the Court of Appeals, such a result might seem harsh, but "there must be an end to lawsuits and the time to take an appeal cannot forever be extended. Absent the sort of circumstances mentioned in CPLR § 5015, such as newly discovered evidence, fraud, lack of jurisdiction, etc., a determination of a court from which no appeal has been taken ought to remain inviolate." (Matter of Huie [Furman], supra, at 572, 285 NYS2d 610). See also Glicksman v. Board of Education/Central School Bd. Of Comsewogue Union Free School, 278 AD2d 364, 717 NYS2d 373 (2d Dept. 2000).

The amended statute now specifically provides that a motion based on a change in the law is a motion for leave to renew. The statute imposes no time limit for making such a motion. However, there is no indication in the legislative history of an intention to change the common law rule and its existing statute regarding the finality of judgments. McKinney's Consl. Laws Book 1, Sec. 58, Judgments.¹ (see, Mem. of Off. of Ct. Admin., 1999 NY Legis. Ann., at 158; Leg. Mem., 1999 McKinney's Session Laws of NY, at 1721—1722; Report of Advisory Committee, 1999 McKinney's Session Laws of NY, at 2065—2066). None of the circumstances set forth in CPLR § 5015, nor circumstances which would warrant the exercise of this court's inherent power to provide relief from a judgment are present here (see, Matter of Huie [Furman], supra; cf., McMahon v. City of New York, 105 AD2d 101, 483 NYS2d 228). Consequently, because Plaintiff's motion was made after the Appellate Decision dismissed Plaintiff's case, and the time to appeal the Appellate Decision has expired, Plaintiff's motion to renew is denied.

Plaintiff relies on the newly enacted Foreclosure Abuse Prevention Act ("FAPA") and argues that FAPA should apply to any matter where a final judgment of foreclosure and sale has not been enforced. If this is so, then, under the new provisions of CPLR §§ 203 and 205-a the debt in this case "was not de-accelerated by the unilateral voluntary discontinuance of the prior action" and therefore, the case would not have been dismissed; Plaintiff would prevail on her Article 15 action. However, Plaintiff's reliance on FAPA's retroactive application to this case cannot stand.

FAPA

FAPA serves to overrule the decision in Freedom Mtge. Corp. v Engel, 37 NY3d 1 (2021). Engel was the justification for the Appellate Decision to dismiss this action. Defendant correctly opposes Plaintiff's motion to renew based upon the assertion that FAPA's retroactivity violates the constitutional prohibition against "taking without just compensation," "impairing vested rights," and "impairing private contracts."

This Court has recently decided the issue of FAPA's retroactivity clause's constitutionality in Wilmington Bank v Gawlowski, 2023 NY Slip Op. 23305. The case at bar involves a "final order," the same as in Gawlowski. FAPA's § 10 retroactivity clause violates both the New York State and United States' Constitutions' requirement of due process and separation of powers. The Court incorporates herein by reference the detailed Gawlowski case rationale for making this finding.

Accordingly, the Court denies Plaintiff's motion to renew as untimely; the Appellate Decision is a final order. Neither a motion to renew nor the commencement of a new action can change the Appellate Decision's final order. Further, Plaintiff's reliance on FAPA to retroactively vitiate a final order (i.e. the Appellate Decision) is unconstitutional.

Dated: October 20, 2023

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HON. C. STEPHEN HACKELING, J.S.C.

FOOTNOTES

1.   This statute provides "A judgment, after it becomes final, may not be affected by subsequent legislation."

C. Stephen Hackeling, J.