310 115 LLC v. BANK OF AMERICA NA US BANK NA US BANK NATIONAL ASSOCIATION MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC (2023)

This is an action by a mortgagor, plaintiff 310 W 115 St. LLC, against a mortgagee, defendant U.S. Bank National Association, to quiet title on the ground that the statute of limitations period for bringing a mortgage-foreclosure action has expired.

On March 27, 2018, this court granted U.S. Bank's motion to dismiss the complaint (mot seq 005). (See NYSCEF No. 217.) On March 29, 2018, plaintiff moved for leave to renew on the ground that a recent change in decisional law would affect this court's determination on the motion to dismiss. (See NYSCEF No. 220 [proposed order to show cause].) On April 17, 2018, plaintiff noticed an appeal from this court's March 27, 2018 order. (See NYSCEF No. 229.) Under the then-applicable rules of the Appellate Division, First Department, plaintiff had nine months to perfect its appeal.¹ In October 2018, this court denied plaintiff's motion to renew, holding that the decision on which plaintiff relied did not affect this court's conclusion on the motion to dismiss. (See 310 W 115 St. LLC v Greenpoint Mortgage Funding, Inc., 2018 WL 4934765, at *1 [Sup Ct, NY County Oct. 5, 2018].) Plaintiff did not then perfect its appeal from the order granting the motion to dismiss.

In March 2023, plaintiff brought this motion to renew under CPLR 2221, again arguing that renewal should be granted based on a change in governing law. This time around, plaintiff relies on CPLR 3217 (e), which governs the limitations-related consequences of voluntary discontinuances of mortgage-foreclosure actions and which became effective on December 30, 2022. (See L 2022 ch 821, § 8 [adding subdivision (e) to CPLR 3217], § 10 [effective date].) The motion to renew is denied as untimely.

A motion for leave to renew "based upon an alleged change in law must be made prior to the entry of a final judgment, or before the time to appeal has fully expired." (Wilmington Trust N.A. v. Fife, 212 AD3d 550, 550-551 [1st Dept 2023] [internal quotation marks omitted] [reversing grant of renewal because the motion to renew had been made after expiration of movant's time to appeal the order at issue].) For these purposes, "before the time to appeal has fully expired" refers either to the time to notice an appeal or to the time to perfect an appeal once noticed. (See id. [reversing grant of plaintiff's motion to renew because plaintiff had brought the motion after its time to perfect its appeal had expired].) Plaintiff did not perfect its appeal from this court's March 2018 dismissal of the complaint. And plaintiff did not bring this motion before the expiration of its time to perfect. Renewal is unavailable in these circumstances. Although "such a result might seem harsh, . . . 'there must be an end to law suits and the time to take an appeal cannot forever be extended.' " (Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364, 366 [2d Dept 2000], quoting Matter of Huie [Furman], 20 NY2d 568, 572 [1967] [reversing grant of renewal because the motion to renew had been made after expiration of the movant's time to appeal the judgment at issue].)

Given the motion's untimeliness, this court does not reach the question whether the amendment to CPLR 3217 on which plaintiff relies would have affected this court's March 2018 determination that the action should be dismissed.

Accordingly, it is

ORDERED that plaintiff's motion for leave to renew is denied.

DATE 6/21/2023

FOOTNOTES

1.   That period was later reduced to six months by regulations that enacted uniform practice rules across the four departments of the Appellate Division. (See 22 NYCRR 1250.9 [a].) Those rules became effective on September 17, 2018.

Gerald Lebovits, J.