FSB v. Alexander Kogan, appellant, et al., defendants. (2026)

Argued—April 17, 2026

DECISION & ORDER

M/

In an action to foreclose a mortgage, the defendant Alexander Kogan appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated November 4, 2019.  The order denied that defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Alexander Kogan pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred is granted.

In 2007, New Century Mortgage Corporation (hereinafter New Century) commenced an action against the defendant Alexander Kogan (hereinafter the defendant), among others, to foreclose a mortgage on certain real property located in Brooklyn (hereinafter the 2007 action).  The defendant failed to answer the complaint.  In an order dated August 29, 2011 (hereinafter the dismissal order), the Supreme Court directed dismissal of the 2007 action for failure to comply with a prior order.  New Century thereafter moved, inter alia, to vacate the dismissal order.  In an order dated January 14, 2013, the court denied New Century's motion.

In 2015, New Century's alleged successor in interest, which was later substituted by the plaintiff, commenced this action against the defendant, among others, to foreclose the mortgage.  The defendant moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred in light of the commencement of the 2007 action.  The plaintiff opposed the motion, arguing that the debt was not validly accelerated because New Century lacked standing to commence the 2007 action.  In an order dated November 4, 2019, the Supreme Court denied the defendant's motion.  The defendant appeals.

An action to foreclose a mortgage is governed by a six-year statute of limitations (see id. § 213[4];  Federal Natl. Mtge. Assn. [“Fannie Mae”] v Brach, 247 AD3d 849, 850).  Once a mortgage debt is accelerated, such as by the commencement of a mortgage foreclosure action in which the complaint seeks payment of the full outstanding loan balance, the entire amount becomes due and the statute of limitations begins to run on the entire debt (see Federal Natl. Mtge. Assn. [“Fannie Mae”] v Brach, 247 AD3d at 850).

“[S]ervice of a complaint is ineffective to constitute a valid exercise of the option to accelerate a debt where the plaintiff does not have the authority to accelerate the debt or to sue to foreclose at that time” (U.S. Bank Trust, N.A. v. Atedgi, 236 AD3d 707, 711 [internal quotation marks omitted] ).  However, CPLR 213(4), as amended by the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821), provides, in relevant part, that in any action to foreclose a mortgage, “if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated” (CPLR 213[4][a];  see U.S. Bank Trust, N.A. v. Atedgi, 236 AD3d at 711;  MTGLQ Invs., L.P. v. Lila, 226 AD3d 889, 890–891).

Here, the defendant demonstrated, prima facie, that the debt was accelerated when New Century commenced the 2007 action, electing in the complaint to call due the entire amount secured by the mortgage (see MTGLQ Invs., L.P. v. Kovaleva, 246 AD3d 719;  MTGLQ Invs., L.P. v. Lila, 226 AD3d at 890).  The defendant further demonstrated, prima facie, that this action, commenced in 2015, more than six years later, was time-barred (see MTGLQ Invs., L.P. v. Kovaleva, 246 AD3d 719;  MTGLQ Invs., L.P. v. Lila, 226 AD3d at 890).

In opposition to the defendant's prima facie showing, the plaintiff failed to raise a question of fact.  Contrary to the plaintiff's contention, the 2007 action was not “dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated” (CPLR 213[4][a] ).  Rather, the 2007 action was dismissed for failure to comply with a prior court order.  Thus, the plaintiff is estopped from asserting in this action that the debt was not validly accelerated by the commencement of the 2007 action (see U.S. Bank, N.A. v. Bookspan, 247 AD3d 955;  MTGLQ Invs., L.P. v. Lila, 226 AD3d at 891).

The plaintiff's contention that FAPA should not apply retroactively, as well as its challenges to the constitutionality of the retroactive application of FAPA, 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, 822;  Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065, 1069–1071;  97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 AD3d 1038, 1043).

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

IANNACCI, J.P., WOOTEN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court