U.S. Bank National Association, appellant, v. 153 LLC (2026)

Submitted—April 13, 2026

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated July 9, 2024.  The order granted the motion of the defendant 153 Pulaski Street, LLC, for summary judgment dismissing the complaint insofar as asserted against it as time-barred.

ORDERED that the order is affirmed, with costs.

In January 2010, the plaintiff commenced an action against the defendant Sharmina X. Rahman, among others, to foreclose a mortgage encumbering certain real property located in Brooklyn (hereinafter the 2010 action), electing in the complaint to accelerate the mortgage debt.  By order dated August 15, 2013, the Supreme Court directed dismissal of the 2010 action as abandoned pursuant to CPLR 3215(c).  In November 2015, the plaintiff allegedly sent Rahman a letter to revoke the acceleration of the mortgage debt (hereinafter the de-acceleration letter).  At or around the same time, Rahman transferred her entire interest in the property to the defendant 153 Pulaski Street, LLC (hereinafter the defendant).

In November 2022, the plaintiff commenced the instant action to foreclose the same mortgage against the defendant, among others.  The defendant interposed an answer in which it asserted various affirmative defenses, including that the action was barred by the statute of limitations.  Thereafter, the defendant moved for summary judgment dismissing the complaint insofar as asserted against it as time-barred.  The plaintiff opposed the motion.  In an order dated July 9, 2024, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4] ).  Where the mortgage debt is accelerated, the entire balance of the debt accrues and the statute of limitations begins to run on the full amount due (see U.S. Bank Trust, N.A. v. Miele, 243 AD3d 718, 720;  Citibank, N.A. v. Horan, 230 AD3d 1216, 1217).  The entire mortgage debt will be deemed to have been accelerated, as relevant here, by the commencement of a mortgage foreclosure action in which the complaint seeks payment of the full outstanding loan balance (see Deutsche Bank Natl. Trust Co. v Mayer, 244 AD3d 686, 688;  U.S. Bank N.A. v. Connor, 204 AD3d 861, 863).

Here, the defendant demonstrated, prima facie, that the six-year statute of limitations began to run in January 2010, when the plaintiff commenced the 2010 action and elected in the complaint to call due the entire amount secured by the mortgage (see Deutsche Bank Natl. Trust Co. v Mayer, 244 AD3d at 688;  Citimortgage, Inc. v. Gunn, 234 AD3d 922, 923).  The defendant further demonstrated that the instant action was commenced in November 2022, more than six years later, and is, therefore, time-barred (see Deutsche Bank Natl. Trust Co. v Vista Holding, LLC, 239 AD3d 830, 832;  U.S. Bank N.A. v. Doura, 204 AD3d 721, 723).

In opposition, the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff had actually commenced this action within the applicable limitations period.

Contrary to the plaintiff's contention, the de-acceleration letter did not revoke the prior election to accelerate the debt.  After the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821), a noteholder can no longer unilaterally revoke a prior election to accelerate the debt (see CPLR 203[h];  FV–I, Inc. v. Samuels, 240 AD3d 757, 759;  Bank of N.Y. Mellon v. Stewart, 216 AD3d 720, 723).  The plaintiff's arguments challenging FAPA's retroactive application and constitutionality are without merit (see Van Dyke v. U.S. Bank, N.A., 45 NY3d 461, 474;  Article 13 LLC v. Ponce De Leon Fed. Bank, 45 NY3d 441, 452–453;  Deutsche Bank Natl. Trust Co. v Feurtado, 241 AD3d 499, 501).

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it as time-barred.

The plaintiff's remaining contentions are either improperly raised for the first time on appeal or without merit.

CONNOLLY, J.P., DOWLING, WAN and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court