MTGLQ INVESTORS v. MAZZA (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Rockland County (David Fried, J.), dated August 18, 2023, (2) an amended order of the same court dated September 26, 2023, and (3) an order of the same court dated March 26, 2024.  The order dated August 18, 2023, insofar as appealed from, denied the plaintiff's motion, inter alia, for summary judgment on the amended complaint insofar as asserted against the defendant Thomas J. Mazza, Jr., and for an order of reference, and granted those branches of that defendant's motion which were for summary judgment dismissing the amended complaint insofar as asserted against him and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.  The amended order, insofar as appealed from, denied the same relief to the plaintiff and granted the same relief to the defendant Thomas J. Mazza, Jr. The order dated March 26, 2024, denied the plaintiff's motion for leave to reargue its prior motion, inter alia, for summary judgment on the amended complaint insofar as asserted against the defendant Thomas J. Mazza, Jr., and for an order of reference, and its opposition to that defendant's motion, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against him and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.

ORDERED that the appeal from the order dated August 18, 2023, is dismissed, as the portion of the order appealed from was superseded by the amended order;  and it is further,

ORDERED that the appeal from the order dated March 26, 2024, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the amended order is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant Thomas J. Mazza, Jr.

In December 2003, the defendant Thomas J. Mazza, Jr. (hereinafter the defendant), executed a note that was secured by a mortgage on certain real property located in Stony Point.  In February 2010, the plaintiff's predecessor in interest commenced an action against the defendant, among others, to foreclose the mortgage (hereinafter the 2010 action).  In an order dated February 23, 2015, the Supreme Court, inter alia, sua sponte, directed dismissal of the complaint in the 2010 action as abandoned pursuant to CPLR 3215(c).  On appeal, this Court affirmed that order (see BAC Home Loans Servicing, L.P. v Mazza, 190 AD3d 908).

In June 2021, the plaintiff commenced this action to foreclose the mortgage.  The defendant interposed an answer in which he asserted, among other things, a counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.  Thereafter, the plaintiff moved, inter alia, for summary judgment on the amended complaint insofar as asserted against the defendant and for an order of reference.  The defendant opposed the plaintiff's motion and moved, among other things, for summary judgment dismissing the amended 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.  The defendant argued that this action was time-barred because the debt was accelerated by the commencement of the 2010 action and, under the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ), the plaintiff could not rely upon the savings provision of CPLR 205(a).  In opposition to the defendant's motion, the plaintiff argued, inter alia, that the retroactive application of FAPA to this action would be improper and unconstitutional.  In an amended order dated September 26, 2023, the Supreme Court, among other things, denied the plaintiff's motion and granted those branches of the defendant's motion.  The plaintiff appeals.

An action to foreclose a mortgage is governed by a six-year statute of limitations (see id. § 213[4];  Lubonty v. U.S. Bank N.A., 34 NY3d 250, 261;  Deutsche Bank Natl. Trust Co. v DiGiorgio, 237 AD3d 899, 900).  “[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” (BHMPW Funding, LLC v. Lloyd–Lewis, 194 AD3d 780, 782 [internal quotation marks omitted];  see Deutsche Bank Natl. Trust Co. v DiGiorgio, 237 AD3d at 900).  “Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the [holder of the note] elects in the complaint to call due the entire amount secured by the mortgage” (GMAT Legal Title Trust 2014–1 v Kator, 213 AD3d 915, 916;  see Deutsche Bank Natl. Trust Co. v DiGiorgio, 237 AD3d at 900).

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 mortgage, and to adjudge the estate or interest free of it, if the applicable statute of limitations for commencing a foreclosure action has expired (see U.S. Bank N.A. v. Medianik, 223 AD3d 935, 938;  Ditmid Holdings, LLC v. JPMorgan Chase Bank, N.A., 180 AD3d 1002, 1003).

Here, the defendant demonstrated, prima facie, that the mortgage debt was accelerated and the six-year statute of limitations began to run in February 2010, when the plaintiff's predecessor in interest commenced the 2010 action and elected to call due the entire amount secured by the mortgage (see Deutsche Bank Natl. Trust Co. v Wong, 218 AD3d 742, 743–744).  The defendant further established, prima facie, that since the plaintiff did not commence this action until June 2021, more than 11 years later, this action was time-barred (see CPLR 213[4];  U.S. Bank N.A. v. Outlaw, 217 AD3d 721, 722–723).

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 it had commenced this action within the applicable limitations period.  FAPA replaced the savings provision of CPLR 205(a) with CPLR 205–a in actions, like this one, upon instruments described in CPLR 213(4) (see id. § 205[c];  Pryce v. U.S. Bank, N.A., 226 AD3d 711, 713).  “Under CPLR 205–a(a), ‘[i]f an action upon an instrument described under [CPLR 213(4) ] is timely commenced and is terminated in any manner other than[, among other things,] a dismissal of the complaint for any form of neglect, including, but not limited to those specified in [CPLR 3215] ․, the original plaintiff, or, if the original plaintiff dies and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period’ ” (Pryce v. U.S. Bank, N.A., 226 AD3d at 713).

Here, there is no dispute that the 2010 action was dismissed as abandoned pursuant to CPLR 3215(c).  Therefore, under FAPA, the plaintiff is not entitled to the benefit of the savings provision of CPLR 205–a (see U.S. Bank Trust, N.A. v. Giangrande, 229 AD3d 834;  Pryce v. U.S. Bank, N.A., 226 AD3d at 713).

There is no merit to the plaintiff's contentions that FAPA does not apply retroactively and that such retroactive application would violate the Due Process Clauses of the United States Constitution and the New York State Constitution or the Contract Clause of the United States Constitution (see Van Dyke v. U.S. Bank, N.A., 45 NY3d 461;  Article 13 LLC v. Ponce De Leon Fed. Bank, 45 NY3d 441;  Federal Natl. Mtge. Assn. [“Fannie Mae”] v Brach, 247 AD3d 849;  Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065, 1069).  The plaintiff's additional contentions that the retroactive application of FAPA would violate the Takings Clauses of the United States Constitution and the New York State Constitution, as well as the Bill of Attainder Clause of the United States Constitution, are improperly raised for the first time on appeal.

Accordingly, the Supreme Court properly denied the plaintiff's motion, inter alia, for summary judgment on the amended complaint insofar as asserted against the defendant and for an order of reference, and properly granted those branches of the defendant's motion which were for summary judgment dismissing the amended complaint insofar as asserted against him and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.

BARROS, J.P., IANNACCI, GOLIA and OTTLEY, JJ., concur.