DEUTSCHE BANK NATIONAL TRUST COMPANY v. GREENLAND (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County (Paul I. Marx, J.), dated April 10, 2024.  The order, insofar as appealed from, upon reargument, adhered to a prior determination in an order of the same court dated January 19, 2024, denying those branches the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Alexander Greenland and for an order of reference and granting that defendant's cross-motion for summary judgment dismissing the complaint insofar asserted against him.

ORDERED that the order dated April 10, 2024, is affirmed insofar as appealed from, with costs.

In November 2011, the plaintiff commenced an action against the defendant Alexander Greenland (hereinafter the defendant), among others, to foreclose a mortgage on certain real property located in Mount Vernon (hereinafter the 2011 action).  The defendant failed to interpose an answer to the complaint or otherwise appear in the 2011 action.  In an order dated April 24, 2015 (hereinafter the 2015 order), the Supreme Court, inter alia, directed dismissal of the 2011 action as abandoned pursuant to CPLR 3215(c).

The plaintiff subsequently moved to vacate the 2015 order and restore the 2011 action to the court's calendar.  In an order dated January 5, 2016, the Supreme Court denied the plaintiff's motion.  The plaintiff appealed from that order, and the appeal was deemed dismissed for failure to perfect.

In August 2021, the plaintiff commenced this action against the defendant, among others, to foreclose the same mortgage.  The defendant interposed an answer, asserting the statute of limitations as an affirmative defense.

In August 2023, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against him as time-barred.  In an order dated January 19, 2024 (hereinafter the January 2024 order), applying the relevant provisions of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ), the Supreme Court, inter alia, denied those branches of the plaintiff's motion and granted the defendant's cross-motion.

The plaintiff then moved, among other things, for leave to reargue those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference and its opposition to the defendant's prior cross-motion.  In an order dated April 10, 2024, the Supreme Court, inter alia, upon reargument, adhered to its determination in the January 2024 order denying those branches of the plaintiff's prior motion and granting the defendant's prior cross-motion.  The plaintiff appeals.

Contrary to the plaintiff's contention, FAPA precluded the plaintiff from availing itself of the savings provision of CPLR 205(a).  “ ‘FAPA replaced the savings provision of CPLR 205(a) with CPLR 205–a in actions upon instruments described in CPLR 213(4),’ such as here” (Nationstar Mtge., LLC v. Oliveri, 243 AD3d 579, 580, quoting Nationstar Mtge., LLC v. Kahana, 240 AD3d 793, 796).  “FAPA specifically defines a dismissal pursuant to CPLR 3215 as a form of neglect that precludes a plaintiff from taking advantage of the six-month savings provision of CPLR 205(a)” (id. [internal quotation marks omitted] ).  Since the 2011 action was dismissed pursuant to CPLR 3215(c), the Supreme Court properly determined that the plaintiff was not entitled to take advantage of the savings provision of CPLR 205–a (see Deutsche Bank Natl. Trust Co. v Feurtado, 241 AD3d 499, 501).  Contrary to the plaintiff's further contention, the retroactive application of FAPA does not violate the plaintiff's rights under the United States Constitution (see Article 13 LLC v. Ponce De Leon Fed. Bank, ––– NY3d ––––, ––––, 2025 N.Y. Slip Op 06536, *4;  Deutsche Bank Natl. Trust Co. v Vista Holding, LLC, 239 AD3d 830, 833–834).

The parties' remaining contentions need not be reached in light of our determination.

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.