DEUTSCHE BANK TRUST COMPANY AMERICAS v. Israel Grossman, etc., respondent. (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated October 17, 2023.  The order, insofar as appealed from, upon renewal, in effect, vacated an order of the same court dated January 10, 2023, denying the prior motion of the defendant Israel Grossman for summary judgment dismissing the complaint insofar as asserted against him and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage, and thereupon granted that defendant's prior motion.

ORDERED that the order dated October 17, 2023, is affirmed insofar as appealed from, with costs.

On April 21, 2006, Reinaldo Suriel executed a note in the sum of $404,400 in favor of People's Choice Home Loan, Inc. The note was secured by a mortgage on certain residential property located in Brooklyn (hereinafter the premises).  Suriel allegedly defaulted on his obligations under the note and mortgage by failing to make the monthly payment due on March 1, 2007.

In June 2007, the plaintiff commenced an action against Suriel, among others, to foreclose the mortgage (hereinafter the 2007 action).

In June 2009, the plaintiff moved, inter alia, for an order of reference.  By order dated February 23, 2011, the Supreme Court directed dismissal of the complaint in the 2007 action with prejudice unless the plaintiff submitted, within 60 days, an affirmation in compliance with a court rule promulgated by the Chief Administrative Judge of the Courts on October 20, 2010.  In an order dated August 29, 2011, the court directed dismissal of the 2007 action upon the plaintiff's failure to comply with the order dated February 23, 2011.  By deed dated May 24, 2013, the premises was conveyed to YYSB Trust.

In July 2022, the plaintiff commenced this action against, among others, Israel Grossman (hereinafter the defendant).  The defendant interposed an answer in which he asserted various affirmative defenses, including that the action was barred by the statute of limitations, and a counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.

In September 2022, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him as barred by the statute of limitations and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.  The plaintiff opposed the motion, arguing, among other things, that the action was timely pursuant to CPLR 205(a).  In an order dated January 10, 2023, the Supreme Court denied the defendant's motion.

Thereafter, the defendant moved for leave to renew his prior motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against him, arguing that the action was untimely and the plaintiff could not rely on the savings provision contained in CPLR 205(a) insofar as that provision had been replaced with CPLR 205–a by the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022]).  In opposition, the plaintiff argued that FAPA did not apply retroactively and that retroactive application of FAPA was unconstitutional.

In an order dated October 17, 2023, the Supreme Court granted leave to renew and, upon renewal, in effect, vacated the order dated January 10, 2023, and thereupon granted the defendant's prior motion for summary judgment dismissing the complaint insofar as asserted against him as barred by the statute of limitations and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.  The plaintiff appeals.

An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4];  Lubonty v. U.S. Bank N.A., 34 N.Y.3d 250, 261, 116 N.Y.S.3d 642, 139 N.E.3d 1222).  “[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” (BHMPW Funding, LLC v. Lloyd–Lewis, 194 A.D.3d 780, 782, 149 N.Y.S.3d 141 [internal quotation marks omitted];  see Citimortgage, Inc. v. Gunn, 234 A.D.3d 922, 923, 227 N.Y.S.3d 177).  “ ‘Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the holder of the note elects in the complaint to call due the entire amount secured by the mortgage’ ” (US Bank N.A. v. Medianik, 223 A.D.3d 935, 937, 206 N.Y.S.3d 78, quoting GMAT Legal Title Trust 2014–1 v. Kator, 213 A.D.3d 915, 916, 184 N.Y.S.3d 805).

“Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge of record that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharge of record the mortgage was commenced” (SYCP, LLC v. Evans, 217 A.D.3d 707, 708, 191 N.Y.S.3d 433 [internal quotation marks omitted]).

FAPA, which became effective December 30, 2022, replaced the savings provision of CPLR 205(a) with CPLR 205–a in actions upon instruments described in CPLR 213(4) (see Pryce v. U.S. Bank, N.A., 226 A.D.3d 711, 713, 210 N.Y.S.3d 121).  Under CPLR 205–a, a plaintiff is no longer entitled to the six-month savings provision set forth in CPLR 205(a), where the action was timely commenced but terminated by, inter alia, “a dismissal of the complaint for any form of neglect, including ․ for violation of any court rules or individual part rules” (id. § 205–a[a]).

Here, the Supreme Court, upon renewal, properly granted the defendant's prior motion for summary judgment dismissing the complaint insofar as asserted against him and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.  The defendant established that the six-year statute of limitations began to run on the entire debt in 2007, when the plaintiff commenced the 2007 action (see SYCP, LLC v. Evans, 217 A.D.3d at 708, 191 N.Y.S.3d 433).  Since the plaintiff did not commence this action until July 2022, more than 10 years after the debt was accelerated, the defendant demonstrated, prima facie, that this action was untimely (see id.).  The plaintiff's arguments challenging FAPA's retroactive application and constitutionality under the United States and New York Constitutions also are without merit (see FV–1, Inc. v. Palaguachi, 234 A.D.3d 818, 822, 227 N.Y.S.3d 329;  Deutsche Bank Natl. Trust Co. v. Dagrin, 233 A.D.3d 1065, 1069–1071, 226 N.Y.S.3d 75;  97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 A.D.3d 1038, 1043, 225 N.Y.S.3d 386).

Moreover, the plaintiff was not entitled to the benefit of CPLR 205–a because the 2007 action was dismissed for a form of neglect, namely the plaintiff's failure to comply with the order dated February 23, 2011, directing the plaintiff to comply with a court rule within 60 days (see U.S Bank N.A. v. Jarrett, 233 A.D.3d 731, 732, 223 N.Y.S.3d 214).

Accordingly, the Supreme Court, upon renewal, properly granted the defendant's prior motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.

In light of the foregoing, we need not consider the parties’ remaining contentions.

GENOVESI, J.P., DOWLING, WAN and TAYLOR, JJ., concur.