BANK NATIONAL ASSOCIATION v. AHMED (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), entered September 1, 2023.  The order granted the motion of the defendants Mahmuda Ahmed and Mohammed Sagir Ahmed for leave to renew that branch of their prior motion which was for summary judgment dismissing the complaint insofar as asserted against them as barred by the statute of limitations, which had been, in effect, denied in a prior order of the same court entered September 26, 2022, and upon renewal, in effect, vacated that portion of the order entered September 26, 2022, and thereupon granted that branch of their prior motion.

ORDERED that the order entered September 1, 2023, is affirmed, with costs.

In May 2014, the plaintiff commenced an action to foreclose a mortgage against Mohammed Ahmed and Mahmuda Ahmed (hereinafter together the defendants), among others (hereinafter the 2014 action).  In January 2019, the 2014 action was dismissed due to the plaintiff's failure to appear for a pretrial conference.

In January 2021, the plaintiff commenced the instant action against the defendants, among others, to foreclose the same mortgage.  Thereafter, the defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff failed to comply with the separate envelope requirement of RPAPL 1304, relying on this Court's determination in Bank of Am., N.A. v. Kessler (202 A.D.3d 10, 160 N.Y.S.3d 277, revd 39 N.Y.3d 317, 186 N.Y.S.3d 85, 206 N.E.3d 1228), and on the ground that this action was barred by the statute of limitations.  The plaintiff opposed the motion, arguing, among other things, that a letter mailed to the defendants in or about July 2019 revoked the prior acceleration of the debt.  In an order entered September 26, 2022, the Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff failed to comply with the separate envelope requirement of RPAPL 1304.  However, in the same order, the court, in effect, denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them as barred by the statute of limitations, determining that there remained an issue of fact with regard that defense.

In April 2023, the defendants moved for leave to renew that branch of their prior motion which was for summary judgment dismissing the complaint insofar as asserted against them as barred by the statute of limitations based upon a change in the law, i.e., the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ).  In an order dated September 1, 2023, the Supreme Court granted leave to renew, and upon renewal, in effect, vacated so much of the order entered September 26, 2022, as, in effect, denied that branch of the defendants' prior motion which was for summary judgment dismissing the complaint insofar as asserted against them as barred by the statute of limitations, and thereupon granted that branch of the defendants' prior motion.  The plaintiff appeals.

“A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law” (Opalinski v. City of New York, 205 A.D.3d 917, 919, 168 N.Y.S.3d 116 [internal quotation marks omitted];  see CPLR 2221[d][2];  FV–1, Inc. v Palaguachi, 234 A.D.3d 818, 227 N.Y.S.3d 329).

Here, the defendants established their entitlement to renewal based upon the enactment of FAPA. An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4] ).  “[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” (Sarkar v. Deutsche Bank Trust Co. Ams., 225 A.D.3d 641, 643, 207 N.Y.S.3d 96 [internal quotation marks omitted] ).  “An acceleration of a mortgage debt can occur when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due” (Collins v. Bank of N.Y. Mellon, 227 A.D.3d 948, 950, 212 N.Y.S.3d 652 [internal quotation marks omitted] ).  “Prior to FAPA, the Court of Appeals held that a noteholder that had caused the six-year limitations period to foreclose a mortgage secured by real property to accrue by electing to accelerate the debt could revoke the acceleration through a unilateral affirmative act of revocation occurring during the limitations period, such as by issuing a clear and unambiguous de-acceleration letter, or by voluntarily discontinuing a foreclosure action” (FV–1, Inc. v. Samuels, 240 A.D.3d 757, 759, 240 N.Y.S.3d 119, citing Freedom Mtge. Corp. v. Engel, 37 N.Y.3d 1, 32, 146 N.Y.S.3d 542, 169 N.E.3d 912).  In its prior order entered September 26, 2022, the Supreme Court determined that a triable issue of fact remained as to whether this action was barred by the statute of limitations, apparently upon consideration of the plaintiff's argument that a de-acceleration letter dated July 24, 2019, revoked the acceleration of the debt and rendered the action timely.  However, pursuant to FAPA, “CPLR 203(h) [now] provides that once a cause of action to foreclose a mortgage has accrued, no party may, in form or effect, unilaterally revive or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the statute of limitations” (FV–1, Inc. v Palaguachi, 234 A.D.3d at 821, 227 N.Y.S.3d 329).

Upon renewal, the defendants established that the mortgage debt was accelerated in May 2014 when the plaintiff commenced the prior action and elected to call due the entire amount secured by the consolidated mortgage, thus triggering the accrual of the six-year limitations period (see FV–1, Inc. v. Samuels, 240 A.D.3d at 760, 240 N.Y.S.3d 119;  Bank of N.Y. Mellon v. Norton, 219 A.D.3d 680, 682, 195 N.Y.S.3d 103).  Since this action was not commenced until January 2021, the defendants demonstrated, prima facie, that this action was time-barred (see U.S. Bank N.A. v. Jarrett, 233 A.D.3d 731, 223 N.Y.S.3d 214).  In opposition to the defendants' prima facie showing upon renewal, the plaintiff failed to raise a triable issue of fact (see CPLR 203[h] ).

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendants' motion for leave to renew that branch of their prior motion which was for summary judgment dismissing the complaint insofar as asserted against them as barred by the statute of limitations, and upon renewal, properly granted that branch of the prior motion.

LASALLE, P.J., VOUTSINAS, LOVE and HOM, JJ., concur.