NATIONSTAR MORTGAGE LLC v. GREENFELD (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 February 6, 2024.  The order, insofar as appealed from, granted the motion of the defendant Jehoshea Greenfeld for summary judgment dismissing the complaint insofar as asserted against him as time-barred and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage and denied those branches of the plaintiff's cross-motion which were for summary judgment on the complaint insofar as asserted against that defendant and dismissing that defendant's counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage, to strike that defendant's affirmative defense alleging that the action was time-barred, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In July 2008, the defendant Jehoshea Greenfeld executed a note and mortgage agreement encumbering certain real property located in Brooklyn.  In September 2010, CitiMortgage, Inc., as servicer of the note, commenced an action against Greenfeld, among others, to foreclose the mortgage (hereinafter the prior action).  A provision of the complaint elected to call due the entire mortgage debt.  Greenfeld failed to appear or answer the complaint.

In January 2016, after being substituted as the plaintiff in the prior action, Federal National Mortgage Association moved, inter alia, for leave to enter a default judgment against Greenfeld and for an order of reference.  Greenfeld cross-moved, among other things, to dismiss the complaint insofar as asserted against him or, in the alternative, to vacate his default in appearing or answering the complaint and for leave to serve a late answer.  In an order dated August 15, 2016, the Supreme Court, inter alia, granted those branches of the motion and denied those branches of the cross-motion.

Greenfeld appealed from the order dated August 15, 2016.  On May 6, 2020, this Court reversed the order insofar as appealed from, denied those branches of the plaintiff's motion which were for leave to enter a default judgment against Greenfeld and for an order of reference, and granted that branch of Greenfeld's cross-motion which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3215(c) (see Federal Natl. Mtge. Assn. v Greenfeld, 183 AD3d 658).

Subsequently, in October 2020, the plaintiff, Nationstar Mortgage, LLC, commenced this action against Greenfeld, among others, to foreclose the mortgage.  Greenfeld interposed an answer in which he asserted, inter alia, an affirmative defense alleging that this action was time-barred and a counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.

Thereafter, Greenfeld moved for summary judgment dismissing the complaint insofar as asserted against him as time-barred, based on the retroactive application of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ) to this action, and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.  The plaintiff opposed Greenfeld's motion and cross-moved, among other things, for summary judgment on the complaint insofar as asserted against Greenfeld and dismissing Greenfeld's counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, to strike Greenfeld's affirmative defense alleging that the action was time-barred, and for an order of reference.  Greenfeld opposed the plaintiff's cross-motion.  In an order dated February 6, 2024, the Supreme Court, inter alia, granted Greenfeld's motion and denied those branches of the plaintiff's cross-motion.  The plaintiff appeals.

An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4];  Deutsche Bank Natl. Trust Co. v Feurtado, 241 AD3d 499, 500;  Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065, 1066).  Pursuant to RPAPL 1501(4), a person who has “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 interests 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 Pryce v U.S. Bank, N.A., 226 AD3d 711, 712).

Even where a mortgage is payable in installments, once the mortgage debt is accelerated, the entire amount is due and the statute of limitation begins to run on the entire debt (see Deutsche Bank Natl. Trust Co. v Feurtado, 241 AD3d at 500;  Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d at 1066).  Acceleration occurs, among other ways, by the commencement of a foreclosure action wherein the noteholder elects in the complaint to call due the entire amount secured by the mortgage (see Deutsche Bank Natl. Trust Co. v Feurtado, 241 AD3d at 500;  Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d at 1066–1067).

Here, the six-year statute of limitations began to run on the entire mortgage debt in September 2010, with the commencement of the prior action, wherein a provision of the complaint elected to call due the entire mortgage debt.  The instant action was commenced in October 2020, more than four years after the statute of limitations expired.

Nonetheless, the plaintiff contends that because the dismissal of the prior action in May 2020 was not for “neglect to prosecute” within the meaning of CPLR 205(a), this action was timely commenced pursuant to the six-month savings provision of that statute.  However, the plaintiff's contention that it was entitled to rely on the savings provision of CPLR 205(a), notwithstanding the dismissal of the prior action pursuant to CPLR 3215(c), is precluded by FAPA, which replaced the savings provision of CPLR 205(a) with CPLR 205–a in actions, like here, upon instruments described in CPLR 213(4) (see CPLR 205–a;  Nationstar Mtge., LLC v Oliveri, 243 AD3d 579, 580;  Bank of N.Y. Mellon Trust Co. v Kyung Lee, 242 AD3d 1163, 1165;  Deutsche Bank Natl. Trust Co. v Vista Holding, LLC, 239 AD3d 830, 832).  FAPA specifically defines a dismissal pursuant to CPLR 3215(c) as a type of neglect that precludes a plaintiff from taking advantage of the six-month savings provision of CPLR 205–a (see Nationstar Mtge., LLC v Oliveri, 243 AD3d at 580;  Bank of N.Y. Mellon Trust Co. v Kyung Lee, 242 AD3d at 1165;  Deutsche Bank Natl. Trust Co. v Vista Holding, LLC, 239 AD3d at 832).

Contrary to the plaintiff's contention, the Supreme Court correctly determined that CPLR 205–a applies retroactively to this action and that such retroactive application does not violate the plaintiff's due process rights under the United States and New York State Constitutions (see HSBC Bank USA, N.A. v St. Hillaire, 251 AD3d 17;  Deutsche Bank Natl. Trust Co. v Vista Holding, LLC, 239 AD3d at 833).

Accordingly, the Supreme Court properly granted Greenfeld's motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage and denied those branches of the plaintiff's cross-motion which were for summary judgment on the complaint insofar as asserted against Greenfeld and dismissing Greenfeld's counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, to strike Greenfeld's affirmative defense alleging that the action was time-barred, and for an order of reference.

In light of our determination, we need not reach Greenfeld's remaining contention.

BARROS, J.P., WARHIT, TAYLOR and QUIRK, JJ., concur.