BANK OF NEW YORK MELLON v. 35 LLC (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant 35 Pleasure, LLC, appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), entered December 24, 2024.  The order and judgment of foreclosure and sale, upon an order of the same court dated December 19, 2024, denying the motion of that defendant for leave to renew its prior cross-motion for summary judgment dismissing the complaint insofar as asserted against it and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, which had been denied in an order of the same court dated May 15, 2019, and granting the plaintiff's cross-motion, inter alia, to confirm a referee's report and for a judgment of foreclosure and sale, among other things, granted the same relief to the plaintiff, denied the same relief to the defendant 35 Pleasure, LLC, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, with costs, the motion of the defendant 35 Pleasure, LLC, for leave to renew its prior cross-motion for summary judgment dismissing the complaint insofar as asserted against it and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage is granted, upon renewal, so much of the order dated May 15, 2019, as denied the prior cross-motion of the defendant 35 Pleasure, LLC, is vacated, and thereupon the prior cross-motion of the defendant 35 Pleasure, LLC, is granted, the plaintiff's cross-motion, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale is denied, and the order dated December 19, 2024, is modified accordingly.

The underlying facts of this case are set forth in this Court's decision and order on a prior appeal (see Bank of N.Y. Mellon v. Conforti, 209 AD3d 942).  As relevant to this appeal, in May 2018, the plaintiff commenced this action against, among others, the defendant 35 Pleasure, LLC (hereinafter 35 Pleasure), to foreclose a mortgage on certain real property.  The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against 35 Pleasure and for an order of reference, and 35 Pleasure cross-moved for summary judgment dismissing the complaint insofar as asserted against it and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, asserting that the plaintiff had commenced a prior action to foreclose the mortgage in December 2011 (hereinafter the 2011 action) that had been voluntarily discontinued in 2014.  In an order dated May 15, 2019, the Supreme Court granted the plaintiff's motion and denied 35 Pleasure's cross-motion.  In an order dated November 6, 2019, the court granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale.  On the prior appeal, this Court held, among other things, that the Supreme Court properly denied 35 Pleasure's cross-motion but erred in granting the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and remitted the matter to the Supreme Court for further proceedings (see id.).

Thereafter, following the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ), 35 Pleasure moved for leave to renew its prior cross-motion for summary judgment dismissing the complaint insofar as asserted against it and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.  In support of its motion, 35 Pleasure argued that the plaintiff's commencement and voluntary discontinuance of the 2011 action rendered this action untimely under FAPA, which constituted a change in the law.  The plaintiff opposed 35 Pleasure's motion, contending, inter alia, that FAPA should not be given retroactive application, and cross-moved, among other things, to confirm the referee's report and for a judgment of foreclosure and sale.  In an order dated December 19, 2024, the Supreme Court denied 35 Pleasure's motion and granted the plaintiff's cross-motion.  In an order and judgment of foreclosure and sale entered December 24, 2024, the court, inter alia, granted the same relief to the plaintiff, denied the same relief to 35 Pleasure, confirmed the referee's report, and directed the sale of the property.  35 Pleasure appeals.

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221[e][2] ).  “Therefore, a motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law” (U.S. Bank N.A. v. Mongru, 241 AD3d 970, 973 [internal quotation marks omitted];  see Opalinski v. City of New York, 205 AD3d 917, 919).

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, quoting BHMPW Funding, LLC v. Lloyd–Lewis, 194 AD3d 780, 782).  “ ‘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, quoting GMAT Legal Title Trust 2014–1 v Kator, 213 AD3d 915, 916;  see 97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 AD3d 1038, 1041).  “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 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” (U.S. Bank N.A. v. Medianik, 223 AD3d 935, 938;  see Ditmid Holdings, LLC v. JPMorgan Chase Bank, N.A., 180 AD3d 1002, 1003).

“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 AD3d 757, 759;  see U.S. Bank N.A. v. Mongru, 241 AD3d at 973).  FAPA, among other things, “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’ ” (97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 AD3d 1038, 1041 [internal quotation marks omitted] ).  In addition, “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 AD3d 818, 821).  “In other words, pursuant to FAPA, ‘the voluntary discontinuance of [a] foreclosure action [may] not serve to de-accelerate the mortgage debt or revive or reset the statute of limitations' ” (U.S. Bank N.A. v. Mongru, 241 AD3d at 974, quoting IPA Asset Mgt., LLC v. HSBC Bank USA, N.A., 234 AD3d 948, 950).

Here, 35 Pleasure correctly contends that FAPA constituted a change in the law that would alter the Supreme Court's prior determination of 35 Pleasure's prior cross-motion for summary judgment dismissing the complaint insofar as asserted against it and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage (see U.S. Bank N.A. v. Mongru, 241 AD3d at 974).  The six-year statute of limitations for this action began to run in December 2011, when the plaintiff commenced the 2011 action and elected in the complaint to call due the entire amount secured by the mortgage (see Citimortgage, Inc. v. Gunn, 234 AD3d at 923;  U.S. Bank N.A. v. Medianik, 223 AD3d at 938).  In light of the statutory amendments enacted by FAPA, the voluntary discontinuance of the 2011 action did not de-accelerate the mortgage debt, and, thus, the applicable limitations period expired in December 2017.  This action, which was commenced in May 2018, therefore, was untimely (see U.S. Bank N.A. v. Mongru, 241 AD3d at 974;  Citimortgage, Inc. v. Gunn, 234 AD3d at 923;  97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 AD3d at 1041).  Moreover, the plaintiff's contentions challenging FAPA's retroactive application and constitutionality are without merit (see Article 13 LLC v. Ponce De Leon Fed. Bank, ––– NY3d ––––, 2025 N.Y. Slip Op 06536;  FV–1, Inc. v. Palaguachi, 234 AD3d at 822).

Accordingly, the Supreme Court should have granted 35 Pleasure's motion for leave to renew and, upon renewal, granted 35 Pleasure's prior cross-motion for summary judgment dismissing the complaint insofar as asserted against it and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.

IANNACCI, J.P., DOWLING, VENTURA and GOLIA, JJ., concur.