BANK TRUST v. FLAUMENBAUM (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated August 21, 2023.  The order granted the motion of the defendant Michelle Flaumenbaum for leave to renew her prior cross-motion for summary judgment dismissing the complaint insofar as asserted against her as time-barred and her opposition to that branch of the plaintiff's prior motion which was for summary judgment on the complaint insofar as asserted against her, which had been determined in an order of the same court dated February 15, 2022, and, upon renewal, in effect, vacated the determination in the order dated February 15, 2022, denying the prior cross-motion of the defendant Michelle Flaumenbaum for summary judgment dismissing the complaint insofar as asserted against her as time-barred and granting that branch of the plaintiff's prior motion which was for summary judgment on the complaint insofar as asserted against that defendant, and thereupon, granted the prior cross-motion and denied that branch of the prior motion.

ORDERED that the order dated August 21, 2023, is affirmed, with costs.

In June 2009, BAC Home Loans Servicing, LP (hereinafter BAC), commenced an action (hereinafter the 2009 action) against the defendant Michelle Flaumenbaum (hereinafter the defendant), among others, to foreclose a mortgage on certain real property located in Brooklyn.  By order dated July 19, 2012, the 2009 action was voluntarily discontinued.

In July 2019, the plaintiff commenced the instant action against the defendant, among others, to foreclose the same mortgage.  In December 2019, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant.  The defendant opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against her as time-barred.  By order dated February 15, 2022, the Supreme Court, among other things, granted that branch of the plaintiff's motion and denied the defendant's cross-motion.

In February 2023, the defendant moved for leave to renew her opposition to that branch of the plaintiff's prior motion which was for summary judgment on the complaint insofar as asserted against the defendant and her prior cross-motion for summary judgment dismissing the complaint insofar as asserted against her as time-barred based upon the change in the law that occurred with the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821) on December 30, 2022.  By order dated August 21, 2023, the Supreme Court granted the defendant leave to renew and, upon renewal, granted the defendant's prior cross-motion and denied that branch of the plaintiff's prior motion.  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;  Deutsche Bank Natl. Trust Co. v. DiGiorgio, 237 A.D.3d 899, 900, 234 N.Y.S.3d 193).  “[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 Deutsche Bank Natl. Trust Co. v. DiGiorgio, 237 A.D.3d 899, 234 N.Y.S.3d 193).  “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” (GMAT Legal Title Trust 2014–1 v. Kator, 213 A.D.3d 915, 916, 184 N.Y.S.3d 805;  see Deutsche Bank Natl. Trust Co. v. DiGiorgio, 237 A.D.3d 899, 234 N.Y.S.3d 193).

Here, the defendant demonstrated, prima facie, that the six-year statute of limitations began to run in June 2009, when BAC commenced the 2009 action and elected in the complaint to call due the entire amount secured by the mortgage (see HSBC Bank USA, N.A. v. Corrales, 224 A.D.3d 816, 818, 206 N.Y.S.3d 330).  The defendant further demonstrated that this action was commenced in July 2019, more than six years later (see CPLR 213[4];  U.S. Bank N.A. v. Simon, 216 A.D.3d 1041, 1042–1043, 191 N.Y.S.3d 61).  The defendant thus established, prima facie, that this action was time-barred (see Deutsche Bank Natl. Trust Co. v. DiGiorgio, 237 A.D.3d 899, 234 N.Y.S.3d 193).

The plaintiff does not dispute that, under FAPA, BAC's voluntary discontinuance of the 2009 action did not revoke the acceleration of the loan or reset the statute of limitations (see CPLR 3217[e], 213[4];  Deutsche Bank Natl. Trust Co. v. DiGiorgio, 237 A.D.3d 899, 234 N.Y.S.3d 193).  The plaintiff's arguments challenging FAPA's retroactive application and constitutionality under the United States Constitution are without merit (see Deutsche Bank Natl. Trust Co. v. Dagrin, 233 A.D.3d 1065, 1067–1068, 226 N.Y.S.3d 75;  97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 A.D.3d 1038, 1042–1043, 225 N.Y.S.3d 386).

BARROS, J.P., FORD, VENTURA and GOLIA, JJ., concur.