FEDERAL NATIONAL MORTGAGE ASSOCIATION v. BRIGANDI (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Helen Brigandi appeals from an order of the Supreme Court, Suffolk County (Christopher Modelewski, J.), dated May 16, 2024.  The order, insofar as appealed from, denied those branches of that defendant's motion which were for summary judgment dismissing the complaint insofar as asserted against her and on her counterclaims pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage and alleging breach of the implied covenant of good faith and fair dealing, and for an award of attorneys' fees.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2006, the defendant Helen Brigandi (hereinafter the defendant) executed a note that was secured by a mortgage encumbering certain real property located in Babylon.  In 2015, the plaintiff commenced an action to foreclose the mortgage (hereinafter the 2015 action).  The complaint in the 2015 action was dismissed pursuant to an order dated December 7, 2018 (hereinafter the December 2018 order).  In the December 2018 order, the Supreme Court, inter alia, awarded summary judgment dismissing the complaint insofar as asserted against the defendant on the ground that the plaintiff had failed to comply with the mailing requirements set forth in RPAPL 1304.  The plaintiff moved, among other things, to vacate that portion of the December 2018 order, as it was issued upon the plaintiff's failure to oppose a cross-motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against the defendant.  In an order dated May 10, 2022 (hereinafter the May 2022 order), the court denied the plaintiff's motion on the ground that the plaintiff had failed to comply with RPAPL 1304.  On May 22, 2022, the plaintiff was served with the May 2022 order with notice of entry.  The plaintiff filed an untimely notice of appeal dated June 22, 2022, from the May 2022 order.  On December 22, 2022, the appeal was deemed dismissed for failure to perfect.

On November 10, 2022, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage.  The defendant moved, among other things, for summary judgment dismissing the complaint insofar as asserted against her on the ground that the action was time-barred, for summary judgment on her counterclaims pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage and alleging breach of the implied covenant of good faith and fair dealing, and for an award of attorneys' fees.  In an order dated May 16, 2024, the Supreme Court, inter alia, denied those branches of the defendant's motion.  The defendant appeals.

“Under CPLR 205(a), where an action is timely commenced and is terminated for any reason other than those specified in the statutes, the 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 ‘effected’ within such six-month period” (Deutsche Bank Natl. Trust Co. v. Zak, 235 A.D.3d 839, 841, 228 N.Y.S.3d 607;  see Deutsche Bank Natl. Trust Co. v. Pena, 240 A.D.3d 475, 477, 238 N.Y.S.3d 264).  However, the Foreclosure Abuse Prevention Act (L 2022, ch 821 [eff Dec. 30, 2022] ) “created a new statute, CPLR 205–a, which is specific to real property actions” (Deutsche Bank Natl. Trust Co. v. Pena, 240 A.D.3d at 477, 238 N.Y.S.3d 264).  “Under CPLR 205–a, where a foreclosure action is timely commenced and is terminated for any reason other than those specified in the statutes, the 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” (Deutsche Bank Natl. Trust Co. v. Zak, 235 A.D.3d at 842, 228 N.Y.S.3d 607, quoting CPLR 205–a[a] ).  “ ‘For the purposes of CPLR 205–a, as for the purposes of CPLR 205(a), termination of the prior action occurs when appeals as of right are exhausted’ ” (Deutsche Bank Natl. Trust Co. v Mayer, 244 A.D.3d 686, 689, quoting U.S. Bank N.A. v. Coleman, 215 A.D.3d 780, 782, 185 N.Y.S.3d 701;  see HSBC Bank USA, N.A. v. Hillaire, ––– A.D.3d ––––, 251 N.Y.S.3d 198, 2026 N.Y. Slip Op. 00353;  Diaz–Ortiz v. Rodriguez, 236 A.D.3d 543, 543, 231 N.Y.S.3d 16).

Under CPLR 205(a) or 205–a, this action was timely insofar as asserted against the defendant.  Although a plaintiff may not take advantage of the six-month savings provision of CPLR 205(a) or 205–a if the prior action was terminated by a final judgment on the merits, here, the 2015 action was dismissed insofar as asserted against the defendant on the ground that the plaintiff had failed to comply with RPAPL 1304.  “ ‘[A] dismissal for failure to comply with RPAPL 1304 [does] not constitute a dismissal on the merits for the purposes of CPLR 205(a) and 205–a because the dismissal of a complaint for the failure to satisfy a condition precedent to suit is not a final judgment upon the merits for the purposes of CPLR 205(a)’ ” (Deutsche Bank Natl. Trust Co. v. Mayer, 244 A.D.3d at 689, 248 N.Y.S.3d 88, quoting Deutsche Bank Natl. Trust Co. v. Zak, 235 A.D.3d at 842, 228 N.Y.S.3d 607).

Moreover, the plaintiff commenced this action within six months of the “termination” of the 2015 action (U.S. Bank N.A. v. Coleman, 215 A.D.3d at 782, 185 N.Y.S.3d 701 [internal quotation marks omitted] ).  Contrary to the defendant's contention, the six-month period provided by CPLR 205(a) and 205–a did not begin with the December 2018 order awarding summary judgment dismissing the complaint in the 2015 action insofar as asserted against the defendant, as no appeal lies from an order granted upon the default of the appealing party (see id. § 5511;  Gounder v. Melrose Credit Union, 241 A.D.3d 882, 883, 241 N.Y.S.3d 376).  The proper procedure for obtaining review of an order granted upon a party's default in opposing a motion is to move to vacate the default, and, if necessary, appeal from the order deciding that motion, which the plaintiff did (see Gounder v. Melrose Credit Union, 241 A.D.3d at 884, 241 N.Y.S.3d 376).  Thus, at the earliest, the termination of the 2015 action did not occur until 30 days after service of the May 2022 order with notice of entry, or June 21, 2022 (see HSBC Bank USA, N.A. v. Hillaire, ––– A.D.3d ––––, 251 N.Y.S.3d 198, 2026 N.Y. Slip Op. 00353;  Deutsche Bank Natl. Trust Co. v Mayer, 244 A.D.3d at 689, 248 N.Y.S.3d 88;  Diaz–Ortiz v. Rodriguez, 236 A.D.3d at 544, 231 N.Y.S.3d 16;  Deutsche Bank Natl. Trust Co. v. Zak, 235 A.D.3d at 841, 228 N.Y.S.3d 607).  As the plaintiff commenced this action on November 10, 2022, and service upon the defendant was complete on November 11, 2022, this action was timely (see Deutsche Bank Natl. Trust Co. v. Mayer, 244 A.D.3d at 689, 248 N.Y.S.3d 88).

The defendant's remaining contentions are either not properly before this Court or without merit.

CHAMBERS, J.P., DOWLING, WAN and MCCORMACK, JJ., concur.