BANK NA v. LANG (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered May 8, 2024.  The order, insofar as appealed from, granted that branch of the motion of the defendant Anna Porczak which was for leave to renew her prior motion for summary judgment dismissing the complaint insofar as asserted against her, which had been denied in an order of the same court dated November 17, 2022, and, upon renewal, in effect, vacated the order dated November 17, 2022, and thereupon, granted that defendant's prior motion for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order entered May 8, 2024, is affirmed insofar as appealed from, with costs.

In 2010, the plaintiff's predecessor in interest commenced an action against the defendant Anna Porczak (hereinafter the defendant), among others, to foreclose a mortgage on real property located in Ridgewood (hereinafter the 2010 action).  By order entered April 3, 2017, the Supreme Court, inter alia, granted the defendant's motion pursuant to CPLR 3215(c) to dismiss the 2010 action as abandoned.  An appeal taken by the plaintiff's predecessor in interest from that order was thereafter deemed dismissed.

In September 2018, the plaintiff's predecessor in interest commenced the present action against the defendant, among others, to foreclose the mortgage.  The defendant served an answer with counterclaims and subsequently moved for summary judgment dismissing the complaint insofar as asserted against her.  In an order dated November 17, 2022, the Supreme Court denied the defendant's motion.  Thereafter, asserting a change in the relevant law by virtue of the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ), the defendant moved, inter alia, for leave to renew her prior summary judgment motion, and thereupon, for summary judgment dismissing the complaint insofar as asserted against her.  In an order entered May 8, 2024, the court, among other things, granted that branch of the defendant's motion which was for leave to renew her prior motion for summary judgment dismissing the complaint insofar as asserted against her and, upon renewal, in effect, vacated the order dated November 17, 2022, and thereupon, granted the defendant's prior motion for summary judgment dismissing the complaint insofar as asserted against her.  The plaintiff appeals.

An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4];  MTGLQ Invs., L.P. v. Lila, 226 AD3d 889, 890).  Even if the mortgage is payable in installments, once a mortgage debt is accelerated, including, by the commencement of a foreclosure action in which the holder of the note elects in the complaint to call due the entire amount secured by the mortgage, the entire amount is due and payable, and the statute of limitations begins to run on the entire debt (see HSBC Bank USA, N.A. v. MD A. Islam, 221 AD3d 672, 673;  GMAT Legal Title Trust 2014–1 v Kator, 213 AD3d 915, 916).

Here, the defendant demonstrated, prima facie, that the statute of limitations began to run on the entire debt in 2010, when the plaintiff's predecessor in interest commenced the 2010 action, and that this action, which was commenced more than six years later, was time-barred (see MTGLQ Invs., L.P. v. Singh, 216 AD3d 1087, 1088).

In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff asserted that the action was timely pursuant to CPLR 205(a) because the instant action was commenced within six months after the termination of the 2010 action.  However, FAPA replaced the savings provision of CPLR 205(a) with CPLR 205–a in actions upon instruments described in CPLR 213(4) (see Deutsche Bank Trust Co. Ams. v Suriel, 246 AD3d 1035, 1037).  Pursuant to CPLR 205–a, a plaintiff is not entitled to the benefit of the six-month savings provision where, as here, the prior action was dismissed as abandoned pursuant to CPLR 3215(c) (see id. § 205–a;  Pryce v. U.S. Bank, N.A., 226 AD3d 711, 713;  U.S. Bank N.A. v. Onuoha, 216 AD3d 1069, 1073).  Furthermore, the plaintiff's contentions that FAPA does not apply retroactively or that retroactive application of FAPA is unconstitutional are without merit (see Van Dyke v. U.S. Bank, N.A., 45 NY3d 461, 469;  Article 13 LLC v. Ponce De Leon Fed. Bank, 45 NY3d 441, 447;  Deutsche Bank Natl. Trust Co. v Feurtado, 241 AD3d 499, 501).

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for leave to renew her prior motion for summary judgment dismissing the complaint insofar as asserted against her, based upon a change in the law that would change the prior determination (see CPLR 2221[e] ), and, upon renewal, in effect, vacated the order dated November 17, 2022, and thereupon, granted the defendant's prior motion for summary judgment dismissing the complaint insofar as asserted against her.

The plaintiff's contentions that the Supreme Court erred in dismissing the 2010 action as abandoned pursuant to CPLR 3215(c) raise issues not determined in the order appealed from, and thus, they are not properly before this Court (see Matter of Kirton, 236 AD3d 914, 915;  Matter of Padin v. Padin, 103 AD3d 729, 730).

The defendant's contention that the Supreme Court erred by, in effect, denying that branch of her motion which was for an award of attorneys' fees pursuant to Real Property Law § 282 is not properly before this Court, as the defendant did not cross-appeal from the order appealed from (see Kruter v United Parcel Serv. Gen. Servs.  Co., 210 AD3d 671, 673).

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

IANNACCI, J.P., DOWLING, LANDICINO and LOVE, JJ., concur.