2007 A7 2007 v. Karen Lopresti, as Administratrix of the Estate of Charles Joseph Lopresti a/k/a Charles J. Lo Presti a/k/a Charles J. Lopresti; et al., Defendants. (2025)

The papers filed electronically via NYSCEF numbered 60 - 77 and 113 - 114 ("Motion Sequence No. 1"); and, 81 — 108, 110 — 112, and 115 - 117 ("Cross-Motion Sequence No. 2") were read and considered herein. Upon such reading and consideration, the Motions are disposed as follows:

BACKGROUND

On February 13, 2008, Plaintiff's predecessor-in-interest, IndyMac, commenced a foreclosure action against Borrower/Decedent Charles Joseph Lopresti ("Decedent") (Index No. 2008-01426). While a judgment of foreclosure and sale was entered in the aforesaid 2008 action as against Decedent, same was vacated. An answer to the 2008 complaint with counterclaims and a reply thereof were subsequently filed in or about 2009. On February 1, 2010, Decedent died. Notwithstanding Decedent's death, and while the 2008 action was still pending, on April 27, 2010, Plaintiff commenced a second foreclosure action on the mortgage against Decedent (Index No. 2010-004359 [later converted to e-filing under Index No. 034370/2023]). Decedent was not served process in the 2010 action prior to his death. Plaintiff did not discontinue the 2010 action nor commence a new action against Decedent's heirs and distributees or against the estate representative, once one had been appointed. Instead, Plaintiff continued the action and moved for an order from the Supreme Court to appoint a personal representative of the estate — a motion that the Supreme Court denied. In late 2010, Plaintiff moved to discontinue the 2008 action, which the Court granted on January 10, 2011.

Litigation proceeded in the 2010 action, including an appeal to the Appellate Division, which resulted in the order granting summary judgment to Plaintiff being reversed. (Deutsche Bank Natl. Tr. Co. v. LoPresti, 203 AD3d 883 [2d Dept 2022].) Following remittance from the Appellate Division, Plaintiff moved again for summary judgment and Defendant cross-moved to dismiss the complaint as a nullity because Decedent had been named as defendant but had died prior to the commencement of the action. The Supreme Court entered an order granting the cross-motion and dismissing the complaint on May 24, 2024. While Plaintiff appealed that decision and order, same was withdrawn on November 5, 2024.

On September 5, 2024, Plaintiff commenced this foreclosure action by filing the Summons, Complaint, Notice of Pendency, and Certificate of Merit via NYSCEF. On November 13, 2024, Defendant Karen LoPresti, as Administratrix of the Estate of Decedent ("Defendant"), served a Verified Answer with affirmative defenses and counterclaims via NYSCEF. On December 2, 2024, Plaintiff served its verified reply to Defendant's counterclaims.

On January 30, 2025, a Note of Issue was filed. The time to file Motions for Summary Judgment was extended on consent of the parties, with a stipulated briefing scheduled entered on May 22, 2025. On June 25, 2025, Defendant brought the within Motion Sequence No. 1 seeking an order granting summary judgment dismissing the Complaint and for judgment on Defendant's counterclaim to cancel and discharge the subject Mortgage as barred by the statute of limitations. Plaintiff opposes said Motion.

Plaintiff also brings Cross-Motion Sequence No. 2 seeking an order granting summary judgment against Defendant pursuant to CPLR § 3212, striking Defendant's Answer, and dismissing her affirmative defenses and counterclaims; confirming the default for all Defendants other than those that filed a notice of appearance or otherwise appeared in this action; appointing a referee to ascertain and compute the amount due to Plaintiff on the note and mortgage upon which this action is brought; granting leave to amend the caption pursuant to CPLR § 3025, by substituting "John Doe" and "Jane Doe" in place and stead of "JOHN DOE #1" and "JOHN DOE #2" respectively; and discontinuing the action against "JOHN DOE #3" through "JOHN DOE #12." Defendant opposes said Cross-Motion.

PARTIES' CONTENTIONS

Defendant, in support of her Motion for Summary Judgment (Motion Sequence No. 1), contends as follows: that the statute of limitations expired by reason of the acceleration of the mortgage on February 13, 2008, which was a date over six years prior to the commencement of this action on September 5, 2024; that the mortgage at issue was accelerated when Plaintiff's predecessor-in-interest, IndyMac, elected to accelerate the mortgage on February 13, 2008, with commencement of a foreclosure action on the aforesaid date; that the 2008 complaint declared Plaintiff's intent to accelerate the mortgage; that there is no colorable argument that the mortgage was not accelerated when Plaintiff's predecessor-in-interest, IndyMac, elected to accelerate the mortgage on February 13, 2008; and that IndyMac had been the assignee of the mortgage from MERS by assignment of mortgage dated two days before the commencement of the 2008 action and therefore had standing to accelerate.

Notwithstanding, Defendant also contends that Plaintiff is estopped from asserting that the mortgage was not validly accelerated, by application of CPLR § 213(4) (and specifically the provision therein — "unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated," which was added as part of the Foreclosure Abuse Prevention Act (L.2022, ch. 821) ["FAPA"]); and that said provision applies prospectively, since that statute was enacted on December 30, 2022.

Defendant also contends as follows: that under FAPA, discontinuance of an action does not revoke the acceleration of a mortgage (CPLR § 3217[e]); that the Second Department has now confirmed that FAPA (and specifically CPLR § 3217[e]) applies retroactively and that such retroactive application does not offend the Constitution. (Deutsche Bank Natl. Tr. Co. v. Dagrin, 233 AD3d 1065 [2d Dept 2024]); that even under pre-FAPA law, the complaint in the 2008 action was not the only expression of a demand for immediate payment because the complaint in the 2010 action made exactly the same demand and that complaint was unaffected by the discontinuance of the 2008 action; thus, even if FAPA is ultimately held by the Court of Appeals not to be retroactive, the acceleration of the mortgage here was never revoked; and the determination that the 2010 action was a legal nullity (since Decedent was named a defendant after his death), did not revoke the acceleration of the mortgage.

Defendant further contends that Plaintiff cannot employ CPLR § 205-a to make the 6-year statute of limitations inapplicable here because the 2010 action was terminated, in part, for Plaintiff's failing to obtain personal jurisdiction, but, mainly, because the 2010 action was not properly commenced — being a nullity — thus disabling Plaintiff from using CPLR § 205-a under the rationale of Markoff v. S. Nassau Community Hosp. (61 NY2d 283 [1984]).

Defendant also contends that she should be granted judgment on her counterclaim pursuant to § 1501(4) of the Real Property Actions and Proceedings Law because she meets all the conditions under said statute, for the following reasons: that the statute of limitations has expired; that Defendant has an interest in the property as the personal representative of the estate of Decedent; that Plaintiff admitted that it does not have physical possession of the Property; and that the affirmative defenses to Defendant's counterclaim, asserted in Plaintiff's reply, are all meritless.

Plaintiff, in opposition to Defendant's Motion Sequence No. 1, contends as follows: that Defendant's Motion should be denied because it is unsupported by competent and admissible testimony, since the Answer was not verified and no affidavit from Defendant is included; that the 2008 action was not a proper acceleration of the mortgage debt, as IndyMac had no authority to accelerate the mortgage debt; and, that even if IndyMac had standing, the effect of the motion to voluntarily discontinue the 2008 foreclosure action constituted an affirmative act to deaccelerate the mortgage debt, which occurred within the six-year statute of limitations to foreclose; and the voluntary discontinuance of the 2008 action affirmatively revoked and nullified the alleged acceleration of the mortgage loan under pre-FAPA Law.

Plaintiff further contends as follows: that if this Court finds that a party without standing can accelerate the loan, it is submitted that FAPA should not apply retroactively to negate the voluntary discontinuance of the 2008 action that reset the statute of limitations to foreclose the Mortgage; that prior to FAPA's enactment, Plaintiff maintained the legal right and standing to enforce the mortgage it holds; and that while the New York Court of Appeals has not yet ruled on either FAPA's retroactive application or the constitutionality of such application, it has recently accepted certified questions on the issue (for example, see Lasalle National Bank Association v. Article 13 LLC, No. 23-7247 (2d Cir. 2025) (certifying the question of whether retroactive application of FAPA violates New York State's Constitution).

Plaintiff also contends as follow: that this action was timely commenced pursuant to CPLR § 205-a since the 2010 action accelerated the loan and was not dismissed for any of the reasons enumerated under said section; that the current action was timely under CPLR § 205-as it was commenced on September 5, 2024, which was within six months of the dismissal of the 2010 action, and service was made upon the proper party defendant and completed within the same six-month period; that Defendant was served and substituted into the prior action on behalf of Decedent pursuant to the order dated August 2, 2017; that a dismissal as a nullity is not the same as a dismissal for lack of personal jurisdiction; and that Defendant does not have standing to assert an affirmative defense that the statute of limitations has expired.

In reply, Defendant contends as follows: that it is the prospective, not the retroactive, operation of CPLR § 213(4), a statute added as part of FAPA, that estops Plaintiff from arguing that IndyMac had no standing; that in the 2008 action, there was no expressed judicial determination upon any timely interposed defense because the 2008 action was discontinued after the complaint, answer, and reply had been served and filed, and no motion practice was engaged in after the Decedent had answered the complaint; that Plaintiff is estopped from arguing that IndyMac lacked standing in 2008 because the complaint in the 2008 action averred that IndyMac was at that time "the sole, true and lawful owner of the said note and mortgage" (NYSCEF Doc. No. 42, at 7, ¶16.); and that this Court should follow controlling precedent that retroactive application of FAPA is appropriate (HSBC Bank USA, N.A. v. Castillo, 84 Misc 3d 1211(A), 2024 NY Slip Op 51415[U] [Sup Ct Rockland County 2024] [Fried, J.]); and (Deutsche Bank Natl. Tr. Co. v. Dagrin, 233 AD3d 1065 [2d Dept 2024]; 97 Lyman Ave., LLC v. MTGLQ Inv'rs, L.P., 233 AD3d 1038 [2d Dept 2024]).

In reply, Defendant further contends as follows: that neither Plaintiff nor the unreported, non-binding decision, cited by Plaintiff (Gabriel v. Newrez, LLC3, 2023 U.S. Dist. LEXIS 47846, US Dist Ct, ED NY, 19 Civ 6738, Komitee, J., Mar. 21, 2023), address the issue, raised by Defendant, that the 2010 action was not properly commenced and therefore, CPLR § 205-a cannot apply; and that Defendant can raise any affirmative defenses and any counterclaims that the Decedent could raise, because Defendant stepped into the shoes of the Decedent-borrower and the Letters of Administration gave her authority to raise those defenses and counterclaims.

DISCUSSION

"[T]he foreclosure of a mortgage cannot be pursued by one who has no demonstrated right to the debt (id.; see Bergman on New York Mortgage Foreclosures § 12.05[1][a][1991])"(see, Bank of NY v. Silverberg, 86 AD3d 274, 926 N.Y.S.2d 532 [2nd Dept. 2011]). Here, Plaintiff, in opposition to Defendant's Motion for Summary Judgment and in support of its own Cross-Motion for Summary Judgment, vigorously argues that IndyMac (the named Plaintiff in the 2008 action) did not have standing therein; and hence could not have accelerated the mortgage by virtue of the 2008 action. However, even though Plaintiff's affiant averred that Plaintiff has been in possession of the original Note since April 25, 2007 (NYSCEF Doc. No. 90, ¶11), the complaint in the 2008 action averred that IndyMac was at that time "the sole, true and lawful owner of the said note and mortgage" (NYSCEF Doc. No. 42, at 7, ¶16). As such, a material issue of fact exists regarding same.

Notwithstanding, even if IndyMac did not have standing to accelerate the mortgage in 2008 (as Plaintiff contends), the issue is whether Plaintiff is now estopped, by application of CPLR § 213(4)(a), which was enacted on December 30, 2022, from arguing that the mortgage was not validly accelerated. Notably, Plaintiff overlooks or stays silent to the application of CPLR § 213(4)(a), which states in relevant part, as follows:

"The following actions must be commenced within six years:

4. an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein;

(a) In any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated."

Here, the Plaintiff is estopped from asserting that the mortgage was not validly accelerated in the prior action, since the prior action was discontinued without an expressed judicial determination that the mortgage was not validly accelerated (see CPLR § 213[4][a]). See, Deutsche Bank Natl. Trust Co. v. Natal, 217 AD3d 835, 191 N.Y.S.3d 662 (2nd Dept. 2023).

As to Plaintiff's contention that FAPA should not be retroactively applied, which would result in the discontinuance of the 2008 action revoking the acceleration of the mortgage, same is without merit. The Appellate Division, Second Department, has recently held that retroactive application of FAPA is appropriate. (Deutsche Bank Natl. Tr. Co. v. Dagrin, 233 AD3d 1065 [2d Dept 2024]; 97 Lyman Ave., LLC v. MTGLQ Inv'rs, L.P., 233 AD3d 1038 [2d Dept 2024]).

As to the applicability of FAPA to the 2010 action, CPLR § 205-a states in relevant part as follows:

"If an action upon an instrument described under [CPLR 213(4)] is timely commenced and is terminated in any manner other than a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for any form of neglect... or upon a final judgment upon the merits, the original plaintiff... may commence a new action upon the same transaction or occurrence... within six months following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six month period."

Plaintiff contends that the current action was timely under CPLR § 205-a, as it was commenced on September 5, 2024, which was within six months of the dismissal of the 2010 action, and service was made upon the proper party defendant and completed within the same six month period. Defendant contends that where a prior action has not been properly commenced, CPLR § 205-a cannot apply; and since the 2010 foreclosure action was a nullity due to the defendant/Decedent having been deceased when it was commenced, that action was not properly commenced.

Timely commencement of the prior action is a condition precedent to the invocation of CPLR § 205(a) (see, Markoff v. South Nassau Community Hosp., 61 NY2d 283, 461 N.E.2d 1253, 473 N.Y.S.2d 766[1984]). The Court of Appeals, in Maldonado v. Maryland Rail Commuter Serv. Admin., 91 NY2d 467, 471-72 [1998], determined, by the same rationale as in Markoff, that plaintiff's failure to name the proper party in the first action resulted in that action not having been properly commenced, which precluded the use of the savings statute (now-repealed statute, CPLR § 306-b[b]) (Id. at 470-71 [quoting statute]) that was similar to CPLR § 205(a) (Id. at 471-72). Here, the 2010 action was dismissed because Decedent had been named as a defendant but had died prior to the commencement of the action; hence, the 2010 action was not properly commenced and CPLR § 205-a cannot be employed to make the six year statute of limitations inapplicable, thereto.

The unreported decision from the federal district court, Gabriel v. Newrez, LLC3, 2023 U.S. Dist. LEXIS 47846, US Dist Ct, ED NY, 19 Civ 6738, Komitee, J., (Mar. 21, 2023), cited by Plaintiff to counter the Court of Appeals' decisions (Markoff v. South Nassau Community Hosp., 61 NY2d 283, 461 N.E.2d 1253, 473 N.Y.S.2d 766[1984]); and Maldonado v. Maryland Rail Commuter Serv. Admin., 91 NY2d 467, 471-72 [1998]) cited by Defendant, is more favorable to Defendant. Plaintiff cites to Gabriel to oppose a contention of Defendant, that Plaintiff cannot employ CPLR § 205-a to make the six year statute of limitations inapplicable because the 2010 action was terminated for Plaintiff's failure to obtain personal jurisdiction. However, Plaintiff overlooks or misapprehends that Defendant also contends that Plaintiff cannot employ CPLR § 205-a to make the six year statute of limitations inapplicable because the 2010 action was not properly commenced — being a nullity.

In Gabriel (an action by Plaintiff-executor against a mortgage servicer for violation of the Fair Debt Collection Practices Act), Plaintiff-executor argued that dismissal of the foreclosure action on the ground that a named party was dead when it was commenced is a dismissal for lack of personal jurisdiction pursuant to CPLR § 205(a) (pre-FAPA). The Gabriel Court disagreed and found that the foreclosure action was dismissed because it was a nullity and the court lacked jurisdiction, not personal jurisdiction. The argument that CPLR § 205(a) did not apply because the foreclosure action had not been properly commenced, was not raised in Gabriel.

As to the issue of Defendant's standing to raise the aforesaid statute of limitations defense and the two counterclaims, Defendant was appointed administrator of Decedent's estate on May 13, 2014. Defendant demonstrated this fact by submitting documentary evidence (NYSCEF Doc. No. 73 [a copy of the Letters of Administration from the Surrogate's Court for Rockland County appointing Defendant as administratrix of Decedent's estate]). Defendant's counsel affirms that said document was mailed to him, as Defendant's attorney, by the Clerk of the Surrogate's Court and maintained in his file for this case (NYSCEF Doc. No. 63). As such, contrary to Plaintiff's contention, Defendant's Motion is supported by competent and admissible evidence (see, Olan v. Farrell Lines, 64 NY2d 1092, 489 N.Y.S.2d 884, 479 N.E.2d 229 [1985]; and Silverite Constr. Co. v. Town of N. Hempstead, 229 AD2d 387, 644 N.Y.S.2d 565 [2nd Dept. 1996]). Plaintiff has failed to raise a triable issue of fact regarding same. Moreover, Plaintiff, in the caption of its Complaint herein, named Defendant Karen LoPresti, as Administratrix of the Estate of Charles Joseph Lopresti a/k/a Charles J. Lo Presti a/k/a Charles J. Lopresti.

Also contrary to Plaintiff's contention, based on the foregoing, Defendant has standing to raise the statute of limitations defense and the two counterclaims. "[T]he estate essentially 'stands in the shoes' of a decedent' (Schneider v. Finmann, 15 NY3d 306, 933 N.E.2d 718, 907 N.Y.S.2d 119, [2010] [quoting Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 SW3d 780, 787 (Tex 2006)] [finding that an estate representative can maintain a claim against an attorney for professional malpractice, even though a third party without privity could not]). See also, Russo v. Rozenholc, 130 AD3d 492, 13 N.Y.S.3d 391 (1st Dept. 2015) [executor of decedent's estate had standing to maintain breach of contract action and legal malpractice action against attorney, . . . although executor was not signatory to retainer agreement, where estate stepped into decedent's shoes, and specifically authorized attorney to represent estate's interests under retainer agreement].

Accordingly, since Defendant has succeeded in her defense against the Plaintiff's action to foreclose the mortgage, and she did assert a counterclaim for attorney's fees (NYSCEF Doc. No. 39), she is entitled to attorneys' fees and expenses pursuant to RPL § 282 (see, U.S. Bank N.A. v. Bajwa, 208 AD3d 1197, 175 N.Y.S.3d 247 [2nd Dept. 2022]; and Deutsche Bank Natl. Trust Co. v. Gordon, 179 AD3d 770, 774, 117 N.Y.S.3d 688).

Because this action is barred by the statute of limitations, this Court need not address Plaintiff's Cross-Motion Sequence No. 2 for Summary Judgment.

In light of the foregoing, it is hereby

ORDERED, that Defendant is awarded summary judgment on Plaintiff's cause of action for foreclosure, and said cause of action is, therefore, dismissed, with prejudice, as time-barred by the statute of limitations; and it is further

ORDERED, that upon entry of this Order, the Rockland County Clerk shall forthwith cancel, discharge of record, and release the notice(s) of pendency filed herein; and it is further

ORDERED, that upon entry of this Order, the Rockland County Clerk shall forthwith cancel, discharge of record, and release the mortgage recorded as Instrument No. 2007-00025183 encumbering the property known as 323 North Midland Avenue, Nyack, New York 10960; and it is further

ORDERED, that Defendant is awarded attorney's fees and expenses. An inquest to determine the amount of attorneys' fees and expenses to be awarded to Defendant, pursuant to RPL § 282, shall be conducted before the undersigned on September 4, 2025 at 9:15AM; and it is further

ORDERED, that Plaintiff's Cross-Motion Sequence No. 2 is rendered moot by the above holding, and is thus denied as academic; and it is further

ORDERED, that Defendant shall, within ten (10) days of the entry of this Order, serve a copy of this Order, together with Notice of Entry, upon all counsel of record and self-represented parties, if any.

The foregoing constitutes the Decision & Order of this Court.

Dated: July 28, 2025

New City, New York

E N T E R:

HON. DAVID FRIED, A.J.S.C.

David Fried, J.