Cassius Pryce, appellant, v. LLC (2026)

Submitted—February 17, 2026

DECISION & ORDER

M/

In an action, inter alia, pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the plaintiff appeals from an order of the Supreme Court, Orange County (Elena Goldberg–Velazquez, J.), dated July 13, 2023.  The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for leave to renew that branch of his prior motion which was for summary judgment on the complaint insofar as asserted against the defendant Nationstar Mortgage, LLC, which had been denied in an order of the same court (Catherine A. Bartlett, J.) dated June 5, 2018.

ORDERED that the order dated July 13, 2023, is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was for leave to renew that branch of his prior motion which was for summary judgment on the complaint insofar as asserted against the defendant Nationstar Mortgage, LLC, is granted, upon renewal, so much of the order dated June 5, 2018, as denied that branch of the plaintiff's prior motion is vacated, and thereupon, that branch of the plaintiff's prior motion is granted.

In 2017, the plaintiff commenced this action, inter alia, pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage encumbering certain real property located in Newburgh against, among others, the defendant Nationstar Mortgage, LLC (hereinafter Nationstar).  The plaintiff alleged that the statute of limitations to foreclose the mortgage expired because more than six years had passed since the mortgage debt was accelerated by the commencement in 2009 of an action to foreclose the mortgage (hereinafter the 2009 foreclosure action).  The plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against Nationstar.  In an order dated June 5, 2018, the Supreme Court, inter alia, denied that branch of the motion.  Subsequently, the plaintiff moved, among other things, for leave to renew that branch of his prior motion which was for summary judgment on the complaint insofar as asserted against Nationstar, contending that there had been a change in the law, namely, the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ), that would change the prior determination.  In an order dated July 13, 2023, the court, inter alia, denied, as untimely, that branch of the plaintiff's motion which was for leave to renew that branch of his prior motion which was for summary judgment on the complaint insofar as asserted against Nationstar.  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 AD3d 917, 919 [internal quotation marks omitted];  see FV–1, Inc. v. Palaguachi, 234 AD3d 818).  “[A] motion for leave to renew pursuant to CPLR 2221(e)(2) based upon ‘a change in the law that would change the prior determination’ must be made, absent circumstances set forth in CPLR 5015, before the time to appeal the final judgment has expired” (Matter of Eagle Ins. Co. v. Persaud, 1 AD3d 356, 357, quoting CPLR 2221[e][2];  see U.S. Bank N.A. v. Tong, 230 AD3d 716, 717).

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 NY3d 250, 261).  “[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” (Citimortgage, Inc. v. Gunn, 234 AD3d 922, 923 [internal quotation marks omitted];  see U.S. Bank N.A. v. Medianik, 223 AD3d 935, 937).  “Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the plaintiff elects in the complaint to call due the entire amount secured by the mortgage” (Citimortgage, Inc. v. Gunn, 234 AD3d at 923 [internal quotation marks omitted];  see GMAT Legal Title Trust 2014–1 v Kator, 213 AD3d 915, 916).

Pursuant to RPAPL 1501(4), a person having an estate or interest in real property subject to a mortgage may maintain an action to secure the cancellation and discharge of record of the encumbrance, and to adjudge the estate or interest free of it, if the applicable statute of limitations for commencing a foreclosure action has expired (see U.S. Bank N.A. v. Medianik, 223 AD3d at 938;  Ditmid Holdings, LLC v. JPMorgan Chase Bank, N.A., 180 AD3d 1002, 1003).

Here, in denying that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against Nationstar in the order dated June 5, 2018, the Supreme Court determined that the discontinuance of the 2009 foreclosure action raised a triable issue of fact as to whether the acceleration of the mortgage was revoked.  However, CPLR 203(h), as amended by FAPA (L 2022, ch 821, § 4), provides that “[o]nce a cause of action upon an instrument described in [CPLR 213(4) ] has accrued, no party may, in form or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim, unless expressly prescribed by statute.”  Moreover, as relevant to this appeal, FAPA amended CPLR 3217(e) to provide that “[i]n any action on an instrument described under [CPLR 213(4) ], the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute (see L 2022, ch 821, § 8)” (97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 AD3d 1038, 1041 [internal quotation marks omitted] ).  Contrary to the court's conclusion, as a final judgment had not yet been entered or enforced in this action, that branch of the plaintiff's motion which was for leave to renew that branch of his prior motion which was for summary judgment on the complaint insofar as asserted against Nationstar was not untimely (see Ditech Fin., LLC v. Naidu, 244 AD3d 1067, 1069;  Opalinski v. City of New York, 205 AD3d at 919).

Moreover, upon renewal, the plaintiff demonstrated, prima facie, that the mortgage debt was accelerated and the six-year statute of limitations began to run in 2009, when the plaintiff in the 2009 foreclosure action commenced that action and elected to call due the entire amount secured by the mortgage (see Deutsche Bank Natl. Trust Co. v Wong, 218 AD3d 742, 743–744).  The plaintiff further established, prima facie, that the statute of limitations expired in 2015 and that a new action to foreclose the mortgage would be time-barred (see CPLR 213[4] ).

In opposition, Nationstar failed to raise a triable issue of fact.  Nationstar's arguments challenging FAPA's retroactive application and constitutionality are without merit (see Van Dyke v. U.S. Bank, N.A., 45 NY3d 461;  Article 13 LLC v. Ponce De Leon Fed. Bank, 45 NY3d 441;  FV–1, Inc. v. Palaguachi, 234 AD3d 818;  Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065, 1071).

Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was for leave to renew that branch of his prior motion which was for summary judgment on the complaint insofar as asserted against Nationstar and, upon renewal, should have granted that branch of his prior motion.

DILLON, J.P., BRATHWAITE NELSON, DOWLING and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court