Preview
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NEW YORK STATE SENATE
INTRODUCER'S MEMORANDUM IN SUPPORT
Submitted In Accordance With Senate Rule VII. Sec l
BILL NUMBER: S5473D REVISED 5/4/2022
SPONSOR: SANDERS
TITLE OF BILL:
An act to amend the real property actions and proceedings law, the general obligations law, and
the civil practice law and rules in relation to the rights of parties involved in actions commenced
upon real property related instruments.
PURPOSE AND INTENT OF BILL:
The Legislature finds that there is an ongoing problem with abuses of the judicial foreclosure
process; that the problem has been exacerbated by court decisions which, contrary to the intent of
the Legislature, have given mortgage lenders and ioan servicers opportunities to avoid strict
compliance with remedial statutes and manipulate statutes of limitation to their advantage; and
that the purpose of the present remedial legislation is to clarify the meaning of existing statutes,
codify correct judicial applications thereof, and rectify erroneous judicial interpretations thereof.
Accordingly, this bill amends certain statutes and rules to clarify the existing law and overturn
those decisions that have strayed from legislative prescription and intent. These amendments and
clarifications will ensure the laws of this state apply equally to all litigants, including those
currently involved in mortgage foreclosures and related actions. The remedial aim of the bill is to
thwart and eliminate abusive and unlawful litigation tactics that have been employed by
foreclosure plaintiffs to the prejudice of homeowners throughout New York. That some of these
tactics have been sanctioned by the judiciary has resulted in perversion of longstanding law and
created an unfair playing. field that favors the mortgage banking and servicing industry at the
expense of everyday New Yorkers.
SUMMARY OF SPECIFIC PROVISIONS:
Section I of the bill provides that this act shall be known as the "Foreclosure Abuse Prevention
Act."
Section 2 of the bill amends RP APL 1301 (3) by clarifying that compliance with the leave of court
requirement thereof is a condition precedent to the commencement of any other action to recover
any part of the mortgage debt, which includes an action to foreclose a mortgage, and the failure to
strictly comply with this condition precedent shall result in the dismissal of such other action
where, prior to the entry of a final judgment in such other action, a defendant raises the failure to
comply with the condition precedent. Subdivision (3) is also amended to clarify, harmonize, and
codify, in part, developed decisional law concerning "de facto" discontinuances, insofar as the
commencement of any such other action while a prior action is pending shall be deemed to
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discontinue the prior action, unless a defendant raises the failure to comply with the leave of court
condition precedent or seeks dismissal upon a ground set forth in CPLR 3211 (a) (4). The section
further amends RPAPL 1301 by adding subdivision (4) to clarify that the leave of court
requirement under subdivision (3) shall not constitute a stay or statutory prohibition within the
meaning of CPLR 204 (a). New subdivision (4) further clarifies that if the mortgage securing the
bond or note representing the debt so secured by the mortgage is adjudicated as time barred by a
court of competent jurisdiction, any other action to recover any part of the same mortgage debt is
equally time barred.
Section 3 of the bill amends subdivisions (4) and (5) of Section 17-105 of the General Obligations
Law to clarify that these subdivisions represent the exclusive means by which parties are enabled
to effectuate a waiver, postponement, cancellation, resetting, tolling, revival or extension of time
limited by statute for commencement of an action or proceeding and interposition of a claim to
foreclose a mortgage .
Section 4 of the bill amends CPLR 203 by adding subdivision (h) to clarify that once a cause of
action has accrued, no party may unilaterally "de-accrue" the cause action or otherwise effectuate
a unilateral extension of the limitations period prescribed by statute to commence an action and to
interpose the claim, unless expressly prescribed by statute.
Section 5 of the bill amends CPLR 205 (c) to specify that section 205 shall not apply to proceedings
governed by CPLR 205-a.
Section 6 of the bill adds a new section CPLR 205-a to clarify the existing law concerning CPLR
205 (a), insofar as its application to actions upon certain real property related instruments.
Subdivision (a) of CPLR 205-a clarifies that the six-month extension afforded to the original
plaintiff under that subdivision is unavailable where the prior action is terminated as a result of:
voluntary dismissal or discontinuance (e.g., CPLR 3217[a] or [b]); failure to obtain personal
jurisdiction over the defendant; final judgment upon the merits; or a disn:iissal of the complaint for
any form of neglect, including, but not limited to those specified in CPLR 3126 (3 ), CPLR 3215
(c), CPLR 3216, CPLR 3404, violation of any court rules or individual part rules, failure to comply
with any court scheduling orders, default due to nonappearance for conference or at a calendar
call, or failure to timely submit any order or judgment, regardless of the specificity, or lack thereof,
utilized in the dismissal order. The statute removes the former requirement that where a dismissal
is warranted for neglect to prosecute, "the judge shall set forth on the record the specific conduct
constituting the neglect." CPLR 205-a (a) (1) clarifies that a successor in interest or assignee of
the original plaintiff is not entitled to the six-month extension, unless pleading and proving that
such assignee is acting on behalf of the original plaintiff, such that only the original plaintiff, upon
whose behalf the claim was timely asserted within the original six-year limitations period
prescribed by law (i.e. , without the six-month extension), may benefit from the savings provision.
CPLR 205-a (a) (2) provides and clarifies that, where applicable, the original plaintiff may only
receive one six-month extension and no court shall allow the original plaintiff to receive more than
one six-month extension. CPLR 205-a (b) provides and clarifies that, where applicable, any claim
or defense timely interposed by a defendant in an answer served in the prior action will be deemed
timely interposed in the ne~ action.
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Section 7 of the bill amends CPU~ 213 (4) by adding two new paragraphs, (a) and (b), to clarify,
codify, and harmonize established principles of estoppel applicable to the statute of limitations to
commence an action on an instrument described under the subdivision where multiple actions exist
upon such instruments and the validity of the cause of action accrual events thereunder are
challenged.
Section 8 of the bill amends CPLR 3217 by adding a new subdivision (e) to clarify that the
voluntary dismissal or discontinuance of any action upon an instrument described in CPLR 213
(4 ), including an action to foreclose a mortgage, by any means, shall not, in form or effect, waive,
postpone, cancel, toll, extend, revive, or reset the applicable limitations period, or the expiration
thereof, unless expressly prescribed by statute. Once a cause of action has accrued, CPLR 3217
(e) clarifies that the voluntary dismissal or discontinuance of an action upon an instrument
described under CPLR 213 (4) shall not effectuate a "de-accrual" of the cause of action.
Section 9 of the bill contains the severability clause of the legislation.
Section 10 of the bill provides for the effective date.
JUSTIFICATION:
There is an urgent need to pass this bill to overrule the Court of Appeals ' recent decision in
Freedom Mtge . Corp. v Engel (3 7 NY3d 1 [2021]) ("Engel"). Engel effectively put the ability to
unilaterally manipulate, arrest, stop, and restart the limitations period prescribed CPLR 213 (4), at
will, directly in the hands of mortgage foreclosure plaintiffs and their servicers, to the cJear
detriment ofNew York homeowners. No other civil plaintiff in this state is extended such unilateral
and unfettered powers. As a direct result of Engel, trial and appellate courts throughout the State
have been bombarded with a flurry of motions made by mortgage lenders and servicers to re-open
cases, some having been dismissed years ago on statute of limitations grounds, on the basis that
Engel represents a change or clarification in the decisional law that, in effect, not only exempts
mortgage foreclosure plaintiffs from having the statute of limitation applied to them, but gives
them unilateral and unbridled control to manipulate calculation of the six-year period provided
underCPLR213 (4)(contraBankofN.Y vSilverberg, 86AD3d274, 283 [2dDept2011] ["[T]he
law must not yield to expediency and the convenience of lending institutions. Proper procedures
must be followed to ... assure the enforcement of the rules that govern real property"]). This, in
turn, has led to an overburdening of the judicial system and uncertainty on the part of innumerable
homeowners currently trapped in an undue state of judicial purgatory, with the fate of their homes
suspended in incertitude. Thus, while the Legislature fully agrees with the judiciary that "clear"
and " bright line" rules should govern actions involving real property related instruments (see Bank
ofAm., NA . v Kessler, 202 AD3d 10, 14 [2d Dept 2021] ; citing Engel, 37 NY3d at 19, 20, 24), the
rules pronounced in Engel 1 contravene the legislative purpose and express language of numerous
statutes and undennine the important public policy of giving repose to human affairs.
1
We note, while constitutional constraints concerning preservation of issues in Engel clearly limited
the scope of the Court' s judicial rule making authority (37 NY3d at 36-37 [Wilson, J. , concurring;
Rivera, J. , dissenting, in part]), the Legislature suffers no such constraint.
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Accordingly, this remedial legislation seeks to level the playing field for all parties engaged in
litigation involving mortgage related real property instruments and ensure the statute oflimitations
not only applies equally to al l, but is impervious to unilateral manipulation. In doing so, the bill
aims to further clarify and reaffirm the legislative intent of a wide spectrum oflaws that have been:
( 1) manipulated and abused by mortgage lending and servicing institutions; and (2) misunderstood
and/or misapplied by the courts .
The Legislature recognizes that "statutes of limitation not only save litigants from defending stale
claims, but also 'express a societal interest or a public policy of giving repose to human affairs"'
(ACE Securities Corp. v DB Structured Products, Inc., 25 NY3d 581 , 593 [2015]; quoting John J.
Kassner & Co. v City of New York, 46 NY2d 544, 550 [l 979]). If the law were to permit lenders
to unilaterally reset the statute of limitations, a great number of foreclosure cases that would
otherwise be time barred could proceed ad infinitum, with the strain on judicial resources
ultimately being subsidized by New York taxpayers (see U.S. Bank N.A . v Papanikolaw, 62 Misc
3d 1207[A] , 2019 NY Slip Op 50026[U], *3 [Sup Ct, Rockland County 2019] [recognizing
"protracted uncertainty" and "notable .. . expenditure of judicial resources" caused by multiple
successive foreclosure actions]). Therefore, the consistent and evenhanded enforcement of the
statute of limitations advances the interests of litigants, relieves burdens on courts, and is a matter
of fundamental fairness.
RPAPL 1301
Insertion of the phrase "including an action to foreclose the mortgage" in subdivision (3) clarifies
that a mortgage foreclosure action is another action "to recover any part of the mortgage debt"
within the meaning of RP APL 1301 (3), thereby codifying the Court ' s holding in Jamaica Sav.
Bank v MS. Inv. Co. (274 NY 215,219 [1937] ["An action to foreclose a mortgage is not an action
to recove~ the mortgage debt from the mortgagor personally, but to collect it out of the land by
enforcing the lien of the mortgage"] [internal quotation marks & citations omitted]). Prior judicial
rulings - which had narrowly interpreted the leave of court requirement from maintaining
simultaneous actions to enforce the note without prior leave of court - are no longer to be
followed (e.g. , Deutsche Bank Natl. Tr. Co. v Gould, 189 AD3d 576, 576 [l st Dept 2020]).
The use of the imperative "shall" with respect to the requirement to obtain prior leave of court
connotes a mandatory requirement (e.g., People v Ricken, 29 AD2d 192, 193 [3d Dept 1968], ajfd
27 NY2d 923 [1970]). Yet, the mandate of the subdivision has been whittled away by judicial
interpretation. The clarification of condition precedent language is to ensure RPAPL 1301 (3) is
afforded the same strict compliance standard as its kindred RP APL Article 13 condition precedents
(see RPAPL 1303, 1304, 1306 [each section containing the phrase "shall be a condition
precedent"] ; cf Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 102-103 [2d Dept 201 I]
[applying strict complfancestandard to RPAPL 1303 and 1304]; accord TD Bank, N.A . v Leroy,
121 AD3d 1256, 1259-1260 [3d Dept 2014] [same strict compliance standard applied to RP APL
1306]). While courts have, on occasion, correctly recognized compliance with RPAPL 1301 (3) to
be a condition precedent to the commencement of an action (e.g. , Sabbatini v Galatini, 43 AD3d
1136, 1139 [2d Dept 2007)), with the failure to strictly comply requiring dismissal (e .g. , Sec. Natl.
Servicing Corp. v Liebowitz, 281 AD2d 615 , 616 [2d Dept 2001]), RPAPL 1301 (3) is the only
RP APL Article 13 condition precedent in which courts routinely, and inappropriately, apply CPLR
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2001 or common-law doctrines (now clarified and codified herein) to disregard or otherwise
excuse violations thereof, typically under the guise of the prior action being "de facto"
discontinued or "effectively abandoned," thereby excusing the plaintiff from seeking the leave of
court expressly required by the subdivision (see e.g. , Wells Fargo Bank, NA . v Irizarry, 142 AD3d
610, 611 [2d Dept 2016]; accord Bosco Credit V Trust Series 2012-1 v Johnson , 177 AD3d 561 ,
562 [1st Dept 2019] ; US. Bank Trust, NA . v Humphrey, 173 AD3d 811 , 811-812 [2d Dept 2019];
MLB Sub I, LLC v Grimes, 170 AD3d 992, 994 [2d Dept 2019]). The failure to satisfy a pre-action
condition precedent can neither be cured nor disregarded after the fact; the existence of prejudice
or a lack thereof is irrelevant (see Weisblurn, 85 AD3d at 107; citing CPLR 2001 ["Where, as here,
the condition sought to be disregarded is a mandatory condition precedent, the plaintiffs failure to
comply cannot be disregarded"]; accord Leroy, 121 AD3d at 159-1260; CIT Bank, NA. v
Anderson, No. 16-CV-1712, 2019 US Dist LEXIS 137755, at *5-8 [EDNY Aug. 14, 2019]). The
amendment reinforces this conclusion insofar as RP APL 1301 (3) is concerned.
The failure to comply with the leave of court condition precedent may not be excused by finding
that the prior action was "de facto discontin[ued]" or "effectively abandoned" (Humphrey, 173
AD3d at 812); or that the defendant was not prejudiced thereby (Irizarry, 142 AD3d at 611); nor
by deeming the pre-action failure a mistake, omission, defect, or irregularity that could be
overlooked or disregarded (id ; citing 2001 ). Accordingly, the "deemed discontinued" language of
the amended RP APL 1301 (3) harmonizes and codifies longstanding jurisprudence that the
commencement of a second action constitutes a discontinuance of the first action (see Credit-
Based Asset Servicing & Securitizafion, LLCv Grimmer, 299 AD2d 887, 887-888 [4th Dept 2002];
Bank of America, NA. v Ali, _ AD3d_, 2022 NY Slip Op 00838, *4 [2d Dept 2022] [Hinds-
Radix, J ., dissenting]), except where a defendant, prior to the entry of a final judgment in the latter
action, raises the failure to comply with this leave-of-court condition precedent, or seeks dismissal
or vacatur upon a ground set forth in CPU{ T2.l l (a) (4), in which case the prior action shall not
be deemed discontinued, as was always the intent of the statute.
The amendment to subdivision (3) and the new subdivision (4) are also intended to overrule
Citirnortgage, Inc. v Ramirez (192 AD3d 70 [3d Dept 2020]) by clarifying that under well-
established election of remedies principles:
(1) RPAPL 1301 (3) shall not constitute a stay or statutory prohibition within the meaning
of CPLR 204 (a); and
(2) If the mortgage securing the bond or note representing the debt so secured by the
mortgage (collectively, the mortgage debt) is adjudicated as time barred by a court of competent
jurisdiction, any other action upon all or part of the same mortgage debt is equally time barred.
Indeed, since the leave of court requirement is a condition precedent, and not a statutory
prohibition, it never tolls the statute of limitations (Daldan, Inc. v Deutsche Bank Natl. Tr. Co.,
188 AD3d 989, 991 [2d Dept 2020]; see generally Barchet v New York City Transit Authority, 20
NY2d 1, 6 [ 1967]).
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GOL 17-105
Subdivisions (4) and (5) are amended to expressly overrule Engel by:
(1) clarifying the Legislature' s intent that the general obligations law be the exclusive
means by which parties are enabled to postpone, cancel, reset, toll, revive or otherwise effectuate
an extension of the time prescribed by law for the commencement of an action or proceeding upon
an instrument described under CPLR 213 (4);
(2) clarifying that unless effectuated in strict accordance with section 17-105 of the general
obligations law, the discontinuance of an action upon an instrument described under CPLR 213
(4), by any means, shall not, in form or effect, function as a waiver, postponement, cancellation,
resetting, tolling, or extension of the statute of limitations; and
(3) codifying the relevant provisions of judicial rulings such as John J. Kassner & Co. (46
NY2d at 550-552); Petito v Piffath (85 NY2d 1, 8-9 [1994 ]); Sotheby's, Inc. v Mao (173 AD3d 72,
76-81 [1st Dept 2019] , Iv denied 34 NY3d 902 [2019]); HSBC Bank USA , NA. v Khemraj (72
Misc 3d 1206[A], 2021 NY Slip Op 50656[U], *3-4 [Sup Ct, Westchester County 2021)); and US
Bank NA. v Szoffer (58 Misc 3d 1220[A], 2017 NY Slip Op 51976[U], *2 [Sup Ct, Rockland
County 2017] , revd 196 AD3d 666 [2d Dept 2021 ]).
With its enactment of General Obligations Law 17-105 (L 1963, ch 576, § 1), the Legislature
provided the exclusive means by which parties to a mortgage may agree to waive, extend,
postpone, or promise not to plead the statute of limitations. Yet, this provision has been largely
ignored in practice, with lenders resorting to the voluntary dismissal or discontinuance of
foreclosure actions (by stipulation, notice, or motion) or unilateral writings such as so-called "de-
acceleration letters" to reset and, in effect, extend the statute oflimitations to foreclose a mortgage.
These unilateral writings flout the requirements of the General Obligations Law.
In Engel, the Court held that, as a matter of law, a stipulation of discontinuance of a foreclosure
action revokes the election to accelerate, absent the noteholder's contemporaneous statement to the
contrary, and thus resets the statute of limitations (3 7 NY3d at 19). A stipulation of discontinuance
is a contract (Brad H. v City ofNew York, 17 NY3d 180, 185 [2011]; Yonkers Fur Dressing Co. v
Royal Ins. Co., 247 NY 435, 444 [1928]). "The public policy represented by the statute of
limitations [and the General Obligations Law] becomes pertinent where the contract not to plead
the statute is inform or effect a contract to extend the period as provided by statute or to postpone
the time from which the period of limitations is to be computed'' (Deutsche Bank Natl. Trust Co. v
Flagstar Capital Mkts ., 32 NY3d 139, 152 [2018], quoting John J. Kassner & Co. , 46 NY2d at
551 [internal quotation marks omitted] [first set of emphasis added, second set in original]). Thus,
the effect of a stipulation of discontinuance under Engel is to extend, postpone, and ultimately
reset the accrual of the statute of limitations on an action to foreclose a mortgage. By interpreting
a stipulation of discontinuance, which is silent to the statute of limitations and contains none of
the language required by General Obligations Law 17-105, as a revocation of acceleration, the
courts have permitted such revocation to "reset" the statute of limitations - meaning a claim for
which the statute of limitations has already accrued, is then treated, in effect, "de-accrued," after
the fact, such that the statute of limitations is no longer running on the claim. Under Engel, this
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back-and-forth yo-yo effect of "accrual" then "de-accrual" may go on, ad infinitum, and has the
effect of extending and resetting the accrual of the statute oflimitations without strict compliance
with General Obligations Law 17-105. While the parties to an action may agree to waive or
postpone the accrual of the statute of limitations on an action to foreclose a mortgage after the
claim has accrued, that agreement must strictly comply with the General Obligations Law (Petito ,
85 NY2d at 8-9).
The amendments are intended to clarify that General Obligation Law 17-105 is the exclusive
means by which the statute of limitations for an action to foreclose a mortgage may be unilaterally
waived or postponed, thus codifying such decisional law as Batavia Townhouses, Ltd. v Council
ofChurches Haus. Dev. Fund Co., Inc. (189 AD3d 20, 24-27 [4th Dept 2020] , Iv granted, 36 NY3d
906 [2021]) and expressly rejecting Wells Fargo Bank NA . v Grover (165 AD3d 1541 [3d Dept
2018]; cf Bradley v New Penn Fin. , LLC, 198 AD3d 1273, 1274-1275 [4th Dept 2021], Iv denied
198 AD3d 1273 [4th Dept 2021]; Nationstar Mtge ., LLC v Dorsin, 180 AD3d 1054, 1057 [2d Dept
2020] [Bradley and Dorsin correctly declining to follow Grover]). The amendments further clarify
that neither General Obligations Law 17-101 nor an acknowledgment of the debt shall apply to
affect the statute of limitations of a mortgage foreclosure action (see Mem of St Dept of Law in
Support, NYS Attorney General , at 1-3, Bill Jacket, L 1961 , ch 582; Letter in Support from St Law
Rev Comm, March 10, 1961 at 1-10, Bill Jacket, L 1961 , ch 582; Memo of Law in Support from
Law Rev Comm to Legis, at 7-14, Bill Jacket, L 1961 , ch 582; Letter in Support from St Jud Conf,
March 8, 1961 at 1-2, Bill Jacket, L 1961 , ch 582; accord Batavia, 189 AD3d at 24-27).
CPLR 203 (hl
CPLR 203 (h) is added to: (1) overrule Engel as violative ofCPLR 201 , and inconsistent with the
legislative intent of CPLR 203 and the public policy of the statute of limitations; and (2) clarify
that no party may unilaterally waive, postpone, cancel, toll, revive, or reset the accrual of a cause
of action, or otherwise effectuate a unilateral extension of the limitations period prescribed by law
to commence an action and to interpose the claim or, in other words, self-effectuate a "de-accrual"
of a claim, unless expressly prescribed by statute 2 (see e.g. , Mao , 173 AD3d at 76-81, n 9). Prior
to the accrual of a cause of action, parties may not agree to extend or waive the statute oflimitations
(see John J Kassner & Co., Inc., 46 NY2d at 551 ; Gen. Oblig. Law 17-105[1]).
Stated simply, the same way personal injury plaintiffs cannot unilaterally reset or otherwise extend
the applicable statute oflimitations to interpose their claim by "un-injuring" and then "re-injuring"
themselves, this new subdivision makes clear that once a cause of action has accrued - meaning
once an injury has been sustained, economic or otherwise - parties have no unilateral right or
ability to declare themselves "un-harmed" and then "re-harmed" which, by design or
happenstance, effectuates an unlawful extension of the time limited by law for interposition of the
claim, unless expressly prescribed by statute.
2
The language "unless expressly prescribed by statute," is not intended to be a " loophole" in the
subdivision and should not be viewed or treated as such. Rather, the language represents the
legislature's recognition of certain unique situations where the law, in effect, may technically provide
a party with the unilateral ability to toll or extend the time prescribed by law to commence an action
and to interpose a claim (see Gen. Oblig. Law 17-105, 17-107; see also 11 USC 362 (automatic
bankruptcy stay tolls statutes of limitation as per the unilateral act by the debtor of filing the petition).
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In the context of actions commenced against real property owners, mortgagors, and borrowers,
including foreclosure actions, and contrary to Engel, a lender's unilateral "de-acceleration" of a
mortgage loan, even if permitted under the express terms of the mortgage loan documents 3, cannot
effectuate "de-accrual" of the cause of action or otherwise unwind the applicable limitations
period, under the guise of having been accomplished by operation of law. Thus, this section is
added to clarify that a lender' s unilateral written revocation of its demand for immediate payment
in full-otherwise known as a "de-acceleration" notice or lett er (see e.g. , Pennymac Corp. v Smith ,
199 AD3d 820, 822 [2d Dept 2021]; Bayview Loan Servicing v Dalal, 184 AD3d 547, 547 [l st
Dept 2020]}--has no effect on the running of the statute of limitations nor the expiration thereof.
Under CPLR 201 , " [a]n action .. . must be commenced within the time specified in this article
unless a different time is prescribed by law or a shorter time is prescribed by written agreement.
No court shall extend the time limited by law for the commencement of an action" (emphasis
added). This amendment clarifies that a lender's unilateral revocation of its demand for immediate
payment in full is not a means " prescribed by law" to postpone, reset, or otherwise affect the
accrual of the statute of limitations (accord Mao , 173 AD3d at 77-78). A party to a contract may
not, by waiving or extending the other party's accrued obligation to render a performance when
due under the contract (but not the performance itself), extend its time under the statute of
limitations to sue for breach without complying with Article 17 of the General Obligations Law.
Although it appears that the standard Fannie Mae/Freddie Mac Form 3033 mortgage instrument
3
expressly permits a borrower the right to de-accelerate a loan, via reinstatement (Bank ofN Y Mellon v
Dieudonne, 171 AD3d 34, 39, 40 [2d Dept 2019] , Iv denied 34 NY3d 9 IO [2020]), it does not permit
the lender to exercise such unilateral action, either expressly or impliedly (Khemraj, 72 Misc 3d
1206(A), 2021 NY Slip Op 50656[U] at *3 -4; cf id. , Index No. 50068/2016, at NYSCEF Doc No . 62
[court held the form 3033 mortgage underlying the action did not provide the plaintiff with unilateral
authority to "de-accelerate" the loan]), and longstanding principles of New York jurisprudence,
including the maxim expressio unius est exclusio alterius, disallow such a right to be read into the
mortgage contract (see e.g. , Quadrant Structured Prods. Co., Ltd. v Verlin, 23 NY3d 549, 560 (2014];
citing In re Ore Cargo, Inc., 544 F2d 80, 82 [2d Cir 1976]; accord Two Guys.from Harrison-NY. v
S.F.R. Realty Assoc. , 63 NY2d 396, 403-404 (1984] ; citing Woodmere Academy v Steinberg, 41 NY2d
746, 750 (1977] ; see also Prudence Co. v 160 W. Seventy--Third St. Corp., 260 NY 205 , 212 [19,32]
[" [I]n no event is .. . the mortgagee accorded rights beyond the stipulations of the mortgage"]). We
note, the primary purpose of CPLR 203 (h) is to clarify that upon accrual of a cause of action, the
aggrieved party- meaning the party with the right to commence an action and interpose a claim - may
not unilaterally extend its own time to assert its own claim. Thus, the subdivision has no adverse impact
on a borrower 's contractual or statutory right to "reinstate" a mortgage loan (i .e., pay the total amount
of his or her arrears and thereby bring the mortgage loan back to a regular monthly installment
contract), which effectively "de-accelerates" a/k/a "de-accrues" a lender 's cause of action to sue upon
the prior, but subsequently cured, mortgage loan default(s) (see e.g. , Fannie Mae/Freddie Mac Form
3033 mortgage ,r 19; cf Gen. Oblig. Law 17-105, 17-107). Accordingly, "de-accrual" under the
General Obligations Law (e.g., §§ 17-105 , 17-107 [the exercise of a borrower' s contractual right to
reinstate a mortgage loan or a borrower' s execution of a properly drafted loan modification
agreement]), constitutes permissive means "expressly prescribed by statute" (CPLR 203[h]).
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The Legislature has specified the methods by which the statute of limitations in a mortgage
foreclosure action could be waived or extended in Article 17 of the General Obligations Law (see
Gen. Oblig. Law 17-105 [express written agreement to extend, waive or not plead as a defense the
statute oflimitations] ; 17-107 [unqualified payment on account of mortgage indebtedness effective
to revive statute of limitations]). A bare stipulation of discontinuance or a lender's unilateral
decision to revoke its demand for full payment is not a method prescribed by the Legislature for
waiving, extending, or modifying the statute of limitations.
"De-acceleration" is merely the lender' s election to revoke its demand for full payment; it does
not "de-accrue" the claim for statute of limitations purposes . "Under the statute of limitations, the
time within which a plaintiff must commence an action 'shall be computed from the time the cause
of action accrued to the time the claim is interposed'" (McCoy v Feinman, 99 NY2d 295 , 300-301
[2002] , quoting CPLR 203[a]; see Hahn A uto. Warehouse, Inc. v Am. Zurich Ins. Co., 18 NY3d
765 , 770-771 [2012]). 4 CPLR 201, Article I 7 of the General Obligations Law, and public policy
all demonstrate that the statute of limitations is not a device a party may unilaterally manipulate to
its advantage (e .g. , Ackerman v Price Waterhouse, 84 NY2d 535, 543 [1994] [rejecting accrual
date calculation method that "is subject to manipulation, rendering it inconsistent with the definite
statutory period"]). To permit a lender's unilateral "de-acceleration" or a mere stipulation of
discontinuance to reset the statute of limitations would be inconsistent not only with the statute of
limitations, itself, "but also with the mandate of CPLR 201 that '[n]o court shall extend the time
limited by law for the commencement of an action" (Fourth Ocean Putnam Corp. v Interstate
Wrecking Co., Inc., 66 NY2d 38, 42 [I 985], quoting CPLR 201 ; cf McCoy, 99 NY2d at 300-301
["While courts have discretion to waive other time limits for good cause (see CPLR 2004), the
Legislature has specifically enjoined that '[n]o court shall extend the time limited by law for the
commencement of an action"']).
While a "de-acceleration" notice or letter (or other unilateral writing or act of a lender) purporting
to revoke a prior demand for immediate payment in full may not expressly reference the statute of
limitations, its effect, as erroneously permitted under existing decisional law, is to reset the statute
of limitations on an already-accrued cause of action (e.g. , Smith, 199 AD3d at 822). Since the
public policy of the statute of limitations is implicated where a writing is "in form or effect a
contract to extend the period as provided by statute or to postpone the time from which the period
of limitation is to be computed" (Deutsche , 32 NY3d at 152; quoring John J Kassner & Co., Inc.,
46 NY2d at 551 [internal quotation marks omitted] [first set of emphasis added, second set in
original]), this section clarifies that no party may, in form or effect, unilaterally waive, extend,
reset or postpone the accrual of the statute of limitations, unless expressly prescribed by statute.
CPLR205{£}
4
We note, for the purposes of the interposition of a claim against a defendant joined to an action after
its commencement (CPLR 203[c], [f]), the additional defendant's unity of interest with the original
defendant must have existed_,t;,om the time of the commencement of the action through the interposition
of the claim against the additional defendant (see Jones v Bill, 10 NY3d 550, 554 [2008) ; Nevling v
Chrysler Corp., 206 AD2d 221 , 224-226 (2d Dept 1994]); Rois Capital Co. v. Beeten, 264 AD2d 724
[2d Dept 1999]; Filigree Films Pension Plan v. CBC Realty Corp., 229 AD2d 862 [3d Dept 1996]).
9
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The Legislature finds that there has been extraordinary abuse and judicial misinterpretation of the
"savings provision" ofCPLR 205 (a) in the context of mortgage foreclosure actions (see e.g. , Wells
Fargo Bank, NA. v Eitani, 148 AD3d 193 [2d Dept 2017] , appeal dismissed 29 NY3d 1023
[2017]; US. Bank NA . v Gordon, 158 AD3d 832 [2d Dept 2018], appeal dismissed 31 NY3d 1144
[2018]; Bank of NY Mellon v Slavin , 156 AD3d I 073 [3d Dept 2017], appeal dismissed 33 NY3d
1128 [2019]; Deutsche Bank Natl. Trust Co. v Gouin, 194 AD3d 479 [1st Dept 2021]). In light of
this finding, CPLR 205 (c), as amended, clarifies that CPLR 205 shall not apply to an action
commenced upon an instrument described under CPLR 213 (4). Rather, CPLR 205-a shall be the
operative "savings statute" for such actions (see generally Maller of World Trade Ctr. Lower
Manhattan Disaster Site Litig. , 30 NY3d 377, 394-400, 401-406 [2017] [claim revival statues
affecting real property have always been treated differently and with heightened constitutional
scrutiny in comparison to non-real property related revival statutes]).
CPLR 205-a
This new section CPLR 205-a is hereby added to clarify the intended meaning of several words
contained in the existing statute from which it is modeled (CPLR 205[a]) and included within the
subdivision by codifying the correct decisional law interpreting the same, while expressly rejecting
court opinions inconsistent therewith.
First, CPLR 205 (a), as amended and reconstituted under CPLR 205-a (a), codifies the Court's
holding in Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape
Architects, P.C. (Habiterra Assoc.) (5 NY3d 514,520 [2005]; accord Marrero v Nails, 114 AD3d
101 , 110 [2d Dept 2013]; Weisman, Cell er, Spell & Modlin v Fischbach LLC, 111 AD3d 566, 567-
568 [1st Dept 2013] ; Wright v Venugopal, 58 AD2d 680, 681 [3d Dept 1977]) and clarifies that a
dismissal for any form of neglect includes, but is not limited to, a dismissal made pursuant to
CPLR 3126 (3), CPLR 3215 (c), CPLR 3216, CPLR 3404, violation of any court rules or individual
part rules, failure to comply with any court scheduling orders, default due to nonappearance for
conference or at a calendar call, or failure to timely submit any order or judgment, regardless of
the specificity, or lack.thereof, utilized in the dismissal order.
The amendment deletes the requirement that the court "set forth on the record the specific conduct
constituting the neglect, which conduct shalJ demonstrate a general pattern of delay in proceeding
with the litigation" (CPLR 205 [a]). This language, added in 2008 (L 2008, ch 156, § 1), has
occasioned erroneous judicial interpretations that the court ' s recitation of the "specific conduct ..
. [which] demonstrate[s] a general pattern of delay" is a condition precedent to the bar against an
extension of the statute of limitations for a neglect based dismissal (see Wells Fargo Bank NA . v
Kehres, 199 AD3d 869, 869-871 [2d Dept 2021]; US. Bank NA ., Tr. to Bank ofAm., NA . v Kim,
192 AD3d 612, 613 [1st Dept 2021 ], appeal dismissed 37 NY3d 932 [202 I]; United States Bank
NA . v Jalas, 195 AD3d 1122, 1123-1125 [3d Dept 2021]; Deutsche Bank Natl. Trust Co. v
Baquero~ 192 AD3d 660. 661-665 [2d Dept 2021 ]; HSBC Bank USA, N.A. v Janvier, 187 AD3d
999, 1001 [2d Dept 2020]). Although we intended for the 2008 amendment to bring clarity as to
"what specifically constitutes a neglect to prosecute particularly where it falls outside Rule 3216"
(Introducer' s Mem in Support, Bill Jacket, L 2008, ch 156 at 6, 10), it appears the implemented
language has not provided the clarity we sought, at least not in the context of mortgage foreclosure
10
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actions (see generally NYSBA Mem in Opposition, Bill Jacket, L 2008, ch 156 at 12-13 [pointing
out potential shortcomings of the amendment]).
To be clear, the Legislature never intended to bring clarity to the neglect-based termination carve-
out of CPLR 205 (a) by hinging the same upon subjectivities, such as the idiosyncratic writing and
descripti ve preferences inherent to, and invariably exercised by, different judges and justices of
the courts (se e generally CPLR 2219[a] [empowering the courts with the discretion to "give the
detennination or direction in such details as the judge deems proper"]). Under such an approach,
the same conduct could (and has) lead to differing statute of limitations results, depending upon
how detailed the prior court' s recitation of the facts constituting the neglect in each instance. Such
an outcome is contrary to the public policy of the statute oflimitations of promoting the objectives
of "finality , certainty and predictability," to the benefit of both plaintiffs and defendants (A CE Sec.
Corp., 25 NY3d at 593 ; Matier of Regina Metro. Co. , LLC v New York Stale Division of Haus. &
Community Renewal, 35 NY3d 332, 3 72 [2020]).
Nor should any act or omission of a court in detailing the extent of the neglect be the arbiter of the
expiration or extension of the statute of limitations, especially where it is the subsequent court, not
the nisi prius, that is given the ultimate power of review and interpretation (see Sokoloff v Schor,
176 AD3d 120, 129-1 33 [2d Dept 2019] [analyzing interplay ofCPLR 205(a) with 5519(a)] ; cf,
CPLR 201 ). Rather, it is the dismissal based on the fact of neglect, itself, not the extent to which
the court detailed the conduct constituting such neglect, that is determinative. Neglectful plaintiffs
should not avoid the consequences of their neglect depending on how concise a prior court' s
determination reads on any given day, and it has never been the Legislature ' s intent for such
subjectivities to control important matters concerning the application of the statute of limitations
and the limjted availability of extensions thereto . All this is now clarified by CPLR 205-a (a).
Second, CPLR 205 (a), as amended and reconstituted under CPLR 205-a (a) and (a) (1), codifies
the Court' s holding in Reliance Ins. Co. v Polyvision Corp (9 NY3d 52, 57-58 [2007]; accord U.S.
Bank N A. v DLI Mtge. Capital, Inc., 141 AD3d 431,433 [1st Dem 2016], affd33 NY3d 72 [2019];
Craft EM CLO 2006-1, Ltd. v Deutsche Bank AG, 178 AD3d 552, 553 [lst_Dept 2019]) and
clarifies the six-month extension afforded under the section is available only to the original
plaintiff and is not intended to be extended to a different party because that "would open a new
tributary in the law, presumably available to individuals as well as corporations, and breathe life
into otherwise stale claims" (R eliance, 9 NY3d at 58). " [M]indful of the potential ramifications of
a rule allowing" otherwise, the Court correctly directed that CPLR 205 (a) should be read "as it
was written by the Legislature ... ." (id.).
Yet, in direct contravention of Reliance, the majority in Eitani held that Wells Fargo Bank, N.A.
(Wells Fargo), the assignee of a mortgage loan originated by Argent Mortgage Company, LLC
(Argent), was entitled to the six-month extension afforded to "the plaintiff' under CPLR 205 (a)
because the mortgage loan was assigned by Argent to Wells Fargo during the pendency of the
prior action, wmch was commenced by Argent (see 148 AD3d at 200-203). This holding is wrong
and must not be followed. In Eitani, Wells Fargo was not asserting the rights of Argent in the new
action. That is, Wells Fargo did not claim to be acting on behalf or for the benefit of Argent. Rather,
as correctly explained by the dissent in Eitani, Wells Fargo was seeking to enforce its own rights
in and to the mortgage loan; the rights it acquired from Argent (148 AD3d at 206-209 [Leventhal,
11
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J., dissenting]). Therefore, Eitani and its progeny should not be followed (e.g., Gordon, 158 AD3d
at 837-839).
Accordingly, CPLR 205-a (a) (l) now makes clear that unless acting on behalf of the or;ginal
plaintiff, a successor in interest or assignee of that original plaintiff is not entitled to the six-month
extension afforded under the subdivision, unless pleading and proving he, she, or it is acting on
behalf of the original plaintiff. For instance, if a mortgage loan were held in a mortgage backed
securitized loan trust, and the original trustee of that loan trust, Bank A, which previously
commenced a timely foreclosure proceeding on behalf of the loan trust that terminated for a reason
not specified under CPLR 205-a (a), is succeeded
Preview
FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT Submitted In Accordance With Senate Rule VII. Sec l BILL NUMBER: S5473D REVISED 5/4/2022 SPONSOR: SANDERS TITLE OF BILL: An act to amend the real property actions and proceedings law, the general obligations law, and the civil practice law and rules in relation to the rights of parties involved in actions commenced upon real property related instruments. PURPOSE AND INTENT OF BILL: The Legislature finds that there is an ongoing problem with abuses of the judicial foreclosure process; that the problem has been exacerbated by court decisions which, contrary to the intent of the Legislature, have given mortgage lenders and ioan servicers opportunities to avoid strict compliance with remedial statutes and manipulate statutes of limitation to their advantage; and that the purpose of the present remedial legislation is to clarify the meaning of existing statutes, codify correct judicial applications thereof, and rectify erroneous judicial interpretations thereof. Accordingly, this bill amends certain statutes and rules to clarify the existing law and overturn those decisions that have strayed from legislative prescription and intent. These amendments and clarifications will ensure the laws of this state apply equally to all litigants, including those currently involved in mortgage foreclosures and related actions. The remedial aim of the bill is to thwart and eliminate abusive and unlawful litigation tactics that have been employed by foreclosure plaintiffs to the prejudice of homeowners throughout New York. That some of these tactics have been sanctioned by the judiciary has resulted in perversion of longstanding law and created an unfair playing. field that favors the mortgage banking and servicing industry at the expense of everyday New Yorkers. SUMMARY OF SPECIFIC PROVISIONS: Section I of the bill provides that this act shall be known as the "Foreclosure Abuse Prevention Act." Section 2 of the bill amends RP APL 1301 (3) by clarifying that compliance with the leave of court requirement thereof is a condition precedent to the commencement of any other action to recover any part of the mortgage debt, which includes an action to foreclose a mortgage, and the failure to strictly comply with this condition precedent shall result in the dismissal of such other action where, prior to the entry of a final judgment in such other action, a defendant raises the failure to comply with the condition precedent. Subdivision (3) is also amended to clarify, harmonize, and codify, in part, developed decisional law concerning "de facto" discontinuances, insofar as the commencement of any such other action while a prior action is pending shall be deemed to FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 discontinue the prior action, unless a defendant raises the failure to comply with the leave of court condition precedent or seeks dismissal upon a ground set forth in CPLR 3211 (a) (4). The section further amends RPAPL 1301 by adding subdivision (4) to clarify that the leave of court requirement under subdivision (3) shall not constitute a stay or statutory prohibition within the meaning of CPLR 204 (a). New subdivision (4) further clarifies that if the mortgage securing the bond or note representing the debt so secured by the mortgage is adjudicated as time barred by a court of competent jurisdiction, any other action to recover any part of the same mortgage debt is equally time barred. Section 3 of the bill amends subdivisions (4) and (5) of Section 17-105 of the General Obligations Law to clarify that these subdivisions represent the exclusive means by which parties are enabled to effectuate a waiver, postponement, cancellation, resetting, tolling, revival or extension of time limited by statute for commencement of an action or proceeding and interposition of a claim to foreclose a mortgage . Section 4 of the bill amends CPLR 203 by adding subdivision (h) to clarify that once a cause of action has accrued, no party may unilaterally "de-accrue" the cause action or otherwise effectuate a unilateral extension of the limitations period prescribed by statute to commence an action and to interpose the claim, unless expressly prescribed by statute. Section 5 of the bill amends CPLR 205 (c) to specify that section 205 shall not apply to proceedings governed by CPLR 205-a. Section 6 of the bill adds a new section CPLR 205-a to clarify the existing law concerning CPLR 205 (a), insofar as its application to actions upon certain real property related instruments. Subdivision (a) of CPLR 205-a clarifies that the six-month extension afforded to the original plaintiff under that subdivision is unavailable where the prior action is terminated as a result of: voluntary dismissal or discontinuance (e.g., CPLR 3217[a] or [b]); failure to obtain personal jurisdiction over the defendant; final judgment upon the merits; or a disn:iissal of the complaint for any form of neglect, including, but not limited to those specified in CPLR 3126 (3 ), CPLR 3215 (c), CPLR 3216, CPLR 3404, violation of any court rules or individual part rules, failure to comply with any court scheduling orders, default due to nonappearance for conference or at a calendar call, or failure to timely submit any order or judgment, regardless of the specificity, or lack thereof, utilized in the dismissal order. The statute removes the former requirement that where a dismissal is warranted for neglect to prosecute, "the judge shall set forth on the record the specific conduct constituting the neglect." CPLR 205-a (a) (1) clarifies that a successor in interest or assignee of the original plaintiff is not entitled to the six-month extension, unless pleading and proving that such assignee is acting on behalf of the original plaintiff, such that only the original plaintiff, upon whose behalf the claim was timely asserted within the original six-year limitations period prescribed by law (i.e. , without the six-month extension), may benefit from the savings provision. CPLR 205-a (a) (2) provides and clarifies that, where applicable, the original plaintiff may only receive one six-month extension and no court shall allow the original plaintiff to receive more than one six-month extension. CPLR 205-a (b) provides and clarifies that, where applicable, any claim or defense timely interposed by a defendant in an answer served in the prior action will be deemed timely interposed in the ne~ action. 2 FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 Section 7 of the bill amends CPU~ 213 (4) by adding two new paragraphs, (a) and (b), to clarify, codify, and harmonize established principles of estoppel applicable to the statute of limitations to commence an action on an instrument described under the subdivision where multiple actions exist upon such instruments and the validity of the cause of action accrual events thereunder are challenged. Section 8 of the bill amends CPLR 3217 by adding a new subdivision (e) to clarify that the voluntary dismissal or discontinuance of any action upon an instrument described in CPLR 213 (4 ), including an action to foreclose a mortgage, by any means, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive, or reset the applicable limitations period, or the expiration thereof, unless expressly prescribed by statute. Once a cause of action has accrued, CPLR 3217 (e) clarifies that the voluntary dismissal or discontinuance of an action upon an instrument described under CPLR 213 (4) shall not effectuate a "de-accrual" of the cause of action. Section 9 of the bill contains the severability clause of the legislation. Section 10 of the bill provides for the effective date. JUSTIFICATION: There is an urgent need to pass this bill to overrule the Court of Appeals ' recent decision in Freedom Mtge . Corp. v Engel (3 7 NY3d 1 [2021]) ("Engel"). Engel effectively put the ability to unilaterally manipulate, arrest, stop, and restart the limitations period prescribed CPLR 213 (4), at will, directly in the hands of mortgage foreclosure plaintiffs and their servicers, to the cJear detriment ofNew York homeowners. No other civil plaintiff in this state is extended such unilateral and unfettered powers. As a direct result of Engel, trial and appellate courts throughout the State have been bombarded with a flurry of motions made by mortgage lenders and servicers to re-open cases, some having been dismissed years ago on statute of limitations grounds, on the basis that Engel represents a change or clarification in the decisional law that, in effect, not only exempts mortgage foreclosure plaintiffs from having the statute of limitation applied to them, but gives them unilateral and unbridled control to manipulate calculation of the six-year period provided underCPLR213 (4)(contraBankofN.Y vSilverberg, 86AD3d274, 283 [2dDept2011] ["[T]he law must not yield to expediency and the convenience of lending institutions. Proper procedures must be followed to ... assure the enforcement of the rules that govern real property"]). This, in turn, has led to an overburdening of the judicial system and uncertainty on the part of innumerable homeowners currently trapped in an undue state of judicial purgatory, with the fate of their homes suspended in incertitude. Thus, while the Legislature fully agrees with the judiciary that "clear" and " bright line" rules should govern actions involving real property related instruments (see Bank ofAm., NA . v Kessler, 202 AD3d 10, 14 [2d Dept 2021] ; citing Engel, 37 NY3d at 19, 20, 24), the rules pronounced in Engel 1 contravene the legislative purpose and express language of numerous statutes and undennine the important public policy of giving repose to human affairs. 1 We note, while constitutional constraints concerning preservation of issues in Engel clearly limited the scope of the Court' s judicial rule making authority (37 NY3d at 36-37 [Wilson, J. , concurring; Rivera, J. , dissenting, in part]), the Legislature suffers no such constraint. 3 FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 Accordingly, this remedial legislation seeks to level the playing field for all parties engaged in litigation involving mortgage related real property instruments and ensure the statute oflimitations not only applies equally to al l, but is impervious to unilateral manipulation. In doing so, the bill aims to further clarify and reaffirm the legislative intent of a wide spectrum oflaws that have been: ( 1) manipulated and abused by mortgage lending and servicing institutions; and (2) misunderstood and/or misapplied by the courts . The Legislature recognizes that "statutes of limitation not only save litigants from defending stale claims, but also 'express a societal interest or a public policy of giving repose to human affairs"' (ACE Securities Corp. v DB Structured Products, Inc., 25 NY3d 581 , 593 [2015]; quoting John J. Kassner & Co. v City of New York, 46 NY2d 544, 550 [l 979]). If the law were to permit lenders to unilaterally reset the statute of limitations, a great number of foreclosure cases that would otherwise be time barred could proceed ad infinitum, with the strain on judicial resources ultimately being subsidized by New York taxpayers (see U.S. Bank N.A . v Papanikolaw, 62 Misc 3d 1207[A] , 2019 NY Slip Op 50026[U], *3 [Sup Ct, Rockland County 2019] [recognizing "protracted uncertainty" and "notable .. . expenditure of judicial resources" caused by multiple successive foreclosure actions]). Therefore, the consistent and evenhanded enforcement of the statute of limitations advances the interests of litigants, relieves burdens on courts, and is a matter of fundamental fairness. RPAPL 1301 Insertion of the phrase "including an action to foreclose the mortgage" in subdivision (3) clarifies that a mortgage foreclosure action is another action "to recover any part of the mortgage debt" within the meaning of RP APL 1301 (3), thereby codifying the Court ' s holding in Jamaica Sav. Bank v MS. Inv. Co. (274 NY 215,219 [1937] ["An action to foreclose a mortgage is not an action to recove~ the mortgage debt from the mortgagor personally, but to collect it out of the land by enforcing the lien of the mortgage"] [internal quotation marks & citations omitted]). Prior judicial rulings - which had narrowly interpreted the leave of court requirement from maintaining simultaneous actions to enforce the note without prior leave of court - are no longer to be followed (e.g. , Deutsche Bank Natl. Tr. Co. v Gould, 189 AD3d 576, 576 [l st Dept 2020]). The use of the imperative "shall" with respect to the requirement to obtain prior leave of court connotes a mandatory requirement (e.g., People v Ricken, 29 AD2d 192, 193 [3d Dept 1968], ajfd 27 NY2d 923 [1970]). Yet, the mandate of the subdivision has been whittled away by judicial interpretation. The clarification of condition precedent language is to ensure RPAPL 1301 (3) is afforded the same strict compliance standard as its kindred RP APL Article 13 condition precedents (see RPAPL 1303, 1304, 1306 [each section containing the phrase "shall be a condition precedent"] ; cf Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 102-103 [2d Dept 201 I] [applying strict complfancestandard to RPAPL 1303 and 1304]; accord TD Bank, N.A . v Leroy, 121 AD3d 1256, 1259-1260 [3d Dept 2014] [same strict compliance standard applied to RP APL 1306]). While courts have, on occasion, correctly recognized compliance with RPAPL 1301 (3) to be a condition precedent to the commencement of an action (e.g. , Sabbatini v Galatini, 43 AD3d 1136, 1139 [2d Dept 2007)), with the failure to strictly comply requiring dismissal (e .g. , Sec. Natl. Servicing Corp. v Liebowitz, 281 AD2d 615 , 616 [2d Dept 2001]), RPAPL 1301 (3) is the only RP APL Article 13 condition precedent in which courts routinely, and inappropriately, apply CPLR 4 FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 2001 or common-law doctrines (now clarified and codified herein) to disregard or otherwise excuse violations thereof, typically under the guise of the prior action being "de facto" discontinued or "effectively abandoned," thereby excusing the plaintiff from seeking the leave of court expressly required by the subdivision (see e.g. , Wells Fargo Bank, NA . v Irizarry, 142 AD3d 610, 611 [2d Dept 2016]; accord Bosco Credit V Trust Series 2012-1 v Johnson , 177 AD3d 561 , 562 [1st Dept 2019] ; US. Bank Trust, NA . v Humphrey, 173 AD3d 811 , 811-812 [2d Dept 2019]; MLB Sub I, LLC v Grimes, 170 AD3d 992, 994 [2d Dept 2019]). The failure to satisfy a pre-action condition precedent can neither be cured nor disregarded after the fact; the existence of prejudice or a lack thereof is irrelevant (see Weisblurn, 85 AD3d at 107; citing CPLR 2001 ["Where, as here, the condition sought to be disregarded is a mandatory condition precedent, the plaintiffs failure to comply cannot be disregarded"]; accord Leroy, 121 AD3d at 159-1260; CIT Bank, NA. v Anderson, No. 16-CV-1712, 2019 US Dist LEXIS 137755, at *5-8 [EDNY Aug. 14, 2019]). The amendment reinforces this conclusion insofar as RP APL 1301 (3) is concerned. The failure to comply with the leave of court condition precedent may not be excused by finding that the prior action was "de facto discontin[ued]" or "effectively abandoned" (Humphrey, 173 AD3d at 812); or that the defendant was not prejudiced thereby (Irizarry, 142 AD3d at 611); nor by deeming the pre-action failure a mistake, omission, defect, or irregularity that could be overlooked or disregarded (id ; citing 2001 ). Accordingly, the "deemed discontinued" language of the amended RP APL 1301 (3) harmonizes and codifies longstanding jurisprudence that the commencement of a second action constitutes a discontinuance of the first action (see Credit- Based Asset Servicing & Securitizafion, LLCv Grimmer, 299 AD2d 887, 887-888 [4th Dept 2002]; Bank of America, NA. v Ali, _ AD3d_, 2022 NY Slip Op 00838, *4 [2d Dept 2022] [Hinds- Radix, J ., dissenting]), except where a defendant, prior to the entry of a final judgment in the latter action, raises the failure to comply with this leave-of-court condition precedent, or seeks dismissal or vacatur upon a ground set forth in CPU{ T2.l l (a) (4), in which case the prior action shall not be deemed discontinued, as was always the intent of the statute. The amendment to subdivision (3) and the new subdivision (4) are also intended to overrule Citirnortgage, Inc. v Ramirez (192 AD3d 70 [3d Dept 2020]) by clarifying that under well- established election of remedies principles: (1) RPAPL 1301 (3) shall not constitute a stay or statutory prohibition within the meaning of CPLR 204 (a); and (2) If the mortgage securing the bond or note representing the debt so secured by the mortgage (collectively, the mortgage debt) is adjudicated as time barred by a court of competent jurisdiction, any other action upon all or part of the same mortgage debt is equally time barred. Indeed, since the leave of court requirement is a condition precedent, and not a statutory prohibition, it never tolls the statute of limitations (Daldan, Inc. v Deutsche Bank Natl. Tr. Co., 188 AD3d 989, 991 [2d Dept 2020]; see generally Barchet v New York City Transit Authority, 20 NY2d 1, 6 [ 1967]). 5 FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 GOL 17-105 Subdivisions (4) and (5) are amended to expressly overrule Engel by: (1) clarifying the Legislature' s intent that the general obligations law be the exclusive means by which parties are enabled to postpone, cancel, reset, toll, revive or otherwise effectuate an extension of the time prescribed by law for the commencement of an action or proceeding upon an instrument described under CPLR 213 (4); (2) clarifying that unless effectuated in strict accordance with section 17-105 of the general obligations law, the discontinuance of an action upon an instrument described under CPLR 213 (4), by any means, shall not, in form or effect, function as a waiver, postponement, cancellation, resetting, tolling, or extension of the statute of limitations; and (3) codifying the relevant provisions of judicial rulings such as John J. Kassner & Co. (46 NY2d at 550-552); Petito v Piffath (85 NY2d 1, 8-9 [1994 ]); Sotheby's, Inc. v Mao (173 AD3d 72, 76-81 [1st Dept 2019] , Iv denied 34 NY3d 902 [2019]); HSBC Bank USA , NA. v Khemraj (72 Misc 3d 1206[A], 2021 NY Slip Op 50656[U], *3-4 [Sup Ct, Westchester County 2021)); and US Bank NA. v Szoffer (58 Misc 3d 1220[A], 2017 NY Slip Op 51976[U], *2 [Sup Ct, Rockland County 2017] , revd 196 AD3d 666 [2d Dept 2021 ]). With its enactment of General Obligations Law 17-105 (L 1963, ch 576, § 1), the Legislature provided the exclusive means by which parties to a mortgage may agree to waive, extend, postpone, or promise not to plead the statute of limitations. Yet, this provision has been largely ignored in practice, with lenders resorting to the voluntary dismissal or discontinuance of foreclosure actions (by stipulation, notice, or motion) or unilateral writings such as so-called "de- acceleration letters" to reset and, in effect, extend the statute oflimitations to foreclose a mortgage. These unilateral writings flout the requirements of the General Obligations Law. In Engel, the Court held that, as a matter of law, a stipulation of discontinuance of a foreclosure action revokes the election to accelerate, absent the noteholder's contemporaneous statement to the contrary, and thus resets the statute of limitations (3 7 NY3d at 19). A stipulation of discontinuance is a contract (Brad H. v City ofNew York, 17 NY3d 180, 185 [2011]; Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435, 444 [1928]). "The public policy represented by the statute of limitations [and the General Obligations Law] becomes pertinent where the contract not to plead the statute is inform or effect a contract to extend the period as provided by statute or to postpone the time from which the period of limitations is to be computed'' (Deutsche Bank Natl. Trust Co. v Flagstar Capital Mkts ., 32 NY3d 139, 152 [2018], quoting John J. Kassner & Co. , 46 NY2d at 551 [internal quotation marks omitted] [first set of emphasis added, second set in original]). Thus, the effect of a stipulation of discontinuance under Engel is to extend, postpone, and ultimately reset the accrual of the statute of limitations on an action to foreclose a mortgage. By interpreting a stipulation of discontinuance, which is silent to the statute of limitations and contains none of the language required by General Obligations Law 17-105, as a revocation of acceleration, the courts have permitted such revocation to "reset" the statute of limitations - meaning a claim for which the statute of limitations has already accrued, is then treated, in effect, "de-accrued," after the fact, such that the statute of limitations is no longer running on the claim. Under Engel, this 6 FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 back-and-forth yo-yo effect of "accrual" then "de-accrual" may go on, ad infinitum, and has the effect of extending and resetting the accrual of the statute oflimitations without strict compliance with General Obligations Law 17-105. While the parties to an action may agree to waive or postpone the accrual of the statute of limitations on an action to foreclose a mortgage after the claim has accrued, that agreement must strictly comply with the General Obligations Law (Petito , 85 NY2d at 8-9). The amendments are intended to clarify that General Obligation Law 17-105 is the exclusive means by which the statute of limitations for an action to foreclose a mortgage may be unilaterally waived or postponed, thus codifying such decisional law as Batavia Townhouses, Ltd. v Council ofChurches Haus. Dev. Fund Co., Inc. (189 AD3d 20, 24-27 [4th Dept 2020] , Iv granted, 36 NY3d 906 [2021]) and expressly rejecting Wells Fargo Bank NA . v Grover (165 AD3d 1541 [3d Dept 2018]; cf Bradley v New Penn Fin. , LLC, 198 AD3d 1273, 1274-1275 [4th Dept 2021], Iv denied 198 AD3d 1273 [4th Dept 2021]; Nationstar Mtge ., LLC v Dorsin, 180 AD3d 1054, 1057 [2d Dept 2020] [Bradley and Dorsin correctly declining to follow Grover]). The amendments further clarify that neither General Obligations Law 17-101 nor an acknowledgment of the debt shall apply to affect the statute of limitations of a mortgage foreclosure action (see Mem of St Dept of Law in Support, NYS Attorney General , at 1-3, Bill Jacket, L 1961 , ch 582; Letter in Support from St Law Rev Comm, March 10, 1961 at 1-10, Bill Jacket, L 1961 , ch 582; Memo of Law in Support from Law Rev Comm to Legis, at 7-14, Bill Jacket, L 1961 , ch 582; Letter in Support from St Jud Conf, March 8, 1961 at 1-2, Bill Jacket, L 1961 , ch 582; accord Batavia, 189 AD3d at 24-27). CPLR 203 (hl CPLR 203 (h) is added to: (1) overrule Engel as violative ofCPLR 201 , and inconsistent with the legislative intent of CPLR 203 and the public policy of the statute of limitations; and (2) clarify that no party may unilaterally waive, postpone, cancel, toll, revive, or reset the accrual of a cause of action, or otherwise effectuate a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim or, in other words, self-effectuate a "de-accrual" of a claim, unless expressly prescribed by statute 2 (see e.g. , Mao , 173 AD3d at 76-81, n 9). Prior to the accrual of a cause of action, parties may not agree to extend or waive the statute oflimitations (see John J Kassner & Co., Inc., 46 NY2d at 551 ; Gen. Oblig. Law 17-105[1]). Stated simply, the same way personal injury plaintiffs cannot unilaterally reset or otherwise extend the applicable statute oflimitations to interpose their claim by "un-injuring" and then "re-injuring" themselves, this new subdivision makes clear that once a cause of action has accrued - meaning once an injury has been sustained, economic or otherwise - parties have no unilateral right or ability to declare themselves "un-harmed" and then "re-harmed" which, by design or happenstance, effectuates an unlawful extension of the time limited by law for interposition of the claim, unless expressly prescribed by statute. 2 The language "unless expressly prescribed by statute," is not intended to be a " loophole" in the subdivision and should not be viewed or treated as such. Rather, the language represents the legislature's recognition of certain unique situations where the law, in effect, may technically provide a party with the unilateral ability to toll or extend the time prescribed by law to commence an action and to interpose a claim (see Gen. Oblig. Law 17-105, 17-107; see also 11 USC 362 (automatic bankruptcy stay tolls statutes of limitation as per the unilateral act by the debtor of filing the petition). 7 FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 In the context of actions commenced against real property owners, mortgagors, and borrowers, including foreclosure actions, and contrary to Engel, a lender's unilateral "de-acceleration" of a mortgage loan, even if permitted under the express terms of the mortgage loan documents 3, cannot effectuate "de-accrual" of the cause of action or otherwise unwind the applicable limitations period, under the guise of having been accomplished by operation of law. Thus, this section is added to clarify that a lender' s unilateral written revocation of its demand for immediate payment in full-otherwise known as a "de-acceleration" notice or lett er (see e.g. , Pennymac Corp. v Smith , 199 AD3d 820, 822 [2d Dept 2021]; Bayview Loan Servicing v Dalal, 184 AD3d 547, 547 [l st Dept 2020]}--has no effect on the running of the statute of limitations nor the expiration thereof. Under CPLR 201 , " [a]n action .. . must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement. No court shall extend the time limited by law for the commencement of an action" (emphasis added). This amendment clarifies that a lender's unilateral revocation of its demand for immediate payment in full is not a means " prescribed by law" to postpone, reset, or otherwise affect the accrual of the statute of limitations (accord Mao , 173 AD3d at 77-78). A party to a contract may not, by waiving or extending the other party's accrued obligation to render a performance when due under the contract (but not the performance itself), extend its time under the statute of limitations to sue for breach without complying with Article 17 of the General Obligations Law. Although it appears that the standard Fannie Mae/Freddie Mac Form 3033 mortgage instrument 3 expressly permits a borrower the right to de-accelerate a loan, via reinstatement (Bank ofN Y Mellon v Dieudonne, 171 AD3d 34, 39, 40 [2d Dept 2019] , Iv denied 34 NY3d 9 IO [2020]), it does not permit the lender to exercise such unilateral action, either expressly or impliedly (Khemraj, 72 Misc 3d 1206(A), 2021 NY Slip Op 50656[U] at *3 -4; cf id. , Index No. 50068/2016, at NYSCEF Doc No . 62 [court held the form 3033 mortgage underlying the action did not provide the plaintiff with unilateral authority to "de-accelerate" the loan]), and longstanding principles of New York jurisprudence, including the maxim expressio unius est exclusio alterius, disallow such a right to be read into the mortgage contract (see e.g. , Quadrant Structured Prods. Co., Ltd. v Verlin, 23 NY3d 549, 560 (2014]; citing In re Ore Cargo, Inc., 544 F2d 80, 82 [2d Cir 1976]; accord Two Guys.from Harrison-NY. v S.F.R. Realty Assoc. , 63 NY2d 396, 403-404 (1984] ; citing Woodmere Academy v Steinberg, 41 NY2d 746, 750 (1977] ; see also Prudence Co. v 160 W. Seventy--Third St. Corp., 260 NY 205 , 212 [19,32] [" [I]n no event is .. . the mortgagee accorded rights beyond the stipulations of the mortgage"]). We note, the primary purpose of CPLR 203 (h) is to clarify that upon accrual of a cause of action, the aggrieved party- meaning the party with the right to commence an action and interpose a claim - may not unilaterally extend its own time to assert its own claim. Thus, the subdivision has no adverse impact on a borrower 's contractual or statutory right to "reinstate" a mortgage loan (i .e., pay the total amount of his or her arrears and thereby bring the mortgage loan back to a regular monthly installment contract), which effectively "de-accelerates" a/k/a "de-accrues" a lender 's cause of action to sue upon the prior, but subsequently cured, mortgage loan default(s) (see e.g. , Fannie Mae/Freddie Mac Form 3033 mortgage ,r 19; cf Gen. Oblig. Law 17-105, 17-107). Accordingly, "de-accrual" under the General Obligations Law (e.g., §§ 17-105 , 17-107 [the exercise of a borrower' s contractual right to reinstate a mortgage loan or a borrower' s execution of a properly drafted loan modification agreement]), constitutes permissive means "expressly prescribed by statute" (CPLR 203[h]). 8 FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 The Legislature has specified the methods by which the statute of limitations in a mortgage foreclosure action could be waived or extended in Article 17 of the General Obligations Law (see Gen. Oblig. Law 17-105 [express written agreement to extend, waive or not plead as a defense the statute oflimitations] ; 17-107 [unqualified payment on account of mortgage indebtedness effective to revive statute of limitations]). A bare stipulation of discontinuance or a lender's unilateral decision to revoke its demand for full payment is not a method prescribed by the Legislature for waiving, extending, or modifying the statute of limitations. "De-acceleration" is merely the lender' s election to revoke its demand for full payment; it does not "de-accrue" the claim for statute of limitations purposes . "Under the statute of limitations, the time within which a plaintiff must commence an action 'shall be computed from the time the cause of action accrued to the time the claim is interposed'" (McCoy v Feinman, 99 NY2d 295 , 300-301 [2002] , quoting CPLR 203[a]; see Hahn A uto. Warehouse, Inc. v Am. Zurich Ins. Co., 18 NY3d 765 , 770-771 [2012]). 4 CPLR 201, Article I 7 of the General Obligations Law, and public policy all demonstrate that the statute of limitations is not a device a party may unilaterally manipulate to its advantage (e .g. , Ackerman v Price Waterhouse, 84 NY2d 535, 543 [1994] [rejecting accrual date calculation method that "is subject to manipulation, rendering it inconsistent with the definite statutory period"]). To permit a lender's unilateral "de-acceleration" or a mere stipulation of discontinuance to reset the statute of limitations would be inconsistent not only with the statute of limitations, itself, "but also with the mandate of CPLR 201 that '[n]o court shall extend the time limited by law for the commencement of an action" (Fourth Ocean Putnam Corp. v Interstate Wrecking Co., Inc., 66 NY2d 38, 42 [I 985], quoting CPLR 201 ; cf McCoy, 99 NY2d at 300-301 ["While courts have discretion to waive other time limits for good cause (see CPLR 2004), the Legislature has specifically enjoined that '[n]o court shall extend the time limited by law for the commencement of an action"']). While a "de-acceleration" notice or letter (or other unilateral writing or act of a lender) purporting to revoke a prior demand for immediate payment in full may not expressly reference the statute of limitations, its effect, as erroneously permitted under existing decisional law, is to reset the statute of limitations on an already-accrued cause of action (e.g. , Smith, 199 AD3d at 822). Since the public policy of the statute of limitations is implicated where a writing is "in form or effect a contract to extend the period as provided by statute or to postpone the time from which the period of limitation is to be computed" (Deutsche , 32 NY3d at 152; quoring John J Kassner & Co., Inc., 46 NY2d at 551 [internal quotation marks omitted] [first set of emphasis added, second set in original]), this section clarifies that no party may, in form or effect, unilaterally waive, extend, reset or postpone the accrual of the statute of limitations, unless expressly prescribed by statute. CPLR205{£} 4 We note, for the purposes of the interposition of a claim against a defendant joined to an action after its commencement (CPLR 203[c], [f]), the additional defendant's unity of interest with the original defendant must have existed_,t;,om the time of the commencement of the action through the interposition of the claim against the additional defendant (see Jones v Bill, 10 NY3d 550, 554 [2008) ; Nevling v Chrysler Corp., 206 AD2d 221 , 224-226 (2d Dept 1994]); Rois Capital Co. v. Beeten, 264 AD2d 724 [2d Dept 1999]; Filigree Films Pension Plan v. CBC Realty Corp., 229 AD2d 862 [3d Dept 1996]). 9 FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 The Legislature finds that there has been extraordinary abuse and judicial misinterpretation of the "savings provision" ofCPLR 205 (a) in the context of mortgage foreclosure actions (see e.g. , Wells Fargo Bank, NA. v Eitani, 148 AD3d 193 [2d Dept 2017] , appeal dismissed 29 NY3d 1023 [2017]; US. Bank NA . v Gordon, 158 AD3d 832 [2d Dept 2018], appeal dismissed 31 NY3d 1144 [2018]; Bank of NY Mellon v Slavin , 156 AD3d I 073 [3d Dept 2017], appeal dismissed 33 NY3d 1128 [2019]; Deutsche Bank Natl. Trust Co. v Gouin, 194 AD3d 479 [1st Dept 2021]). In light of this finding, CPLR 205 (c), as amended, clarifies that CPLR 205 shall not apply to an action commenced upon an instrument described under CPLR 213 (4). Rather, CPLR 205-a shall be the operative "savings statute" for such actions (see generally Maller of World Trade Ctr. Lower Manhattan Disaster Site Litig. , 30 NY3d 377, 394-400, 401-406 [2017] [claim revival statues affecting real property have always been treated differently and with heightened constitutional scrutiny in comparison to non-real property related revival statutes]). CPLR 205-a This new section CPLR 205-a is hereby added to clarify the intended meaning of several words contained in the existing statute from which it is modeled (CPLR 205[a]) and included within the subdivision by codifying the correct decisional law interpreting the same, while expressly rejecting court opinions inconsistent therewith. First, CPLR 205 (a), as amended and reconstituted under CPLR 205-a (a), codifies the Court's holding in Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. (Habiterra Assoc.) (5 NY3d 514,520 [2005]; accord Marrero v Nails, 114 AD3d 101 , 110 [2d Dept 2013]; Weisman, Cell er, Spell & Modlin v Fischbach LLC, 111 AD3d 566, 567- 568 [1st Dept 2013] ; Wright v Venugopal, 58 AD2d 680, 681 [3d Dept 1977]) and clarifies that a dismissal for any form of neglect includes, but is not limited to, a dismissal made pursuant to CPLR 3126 (3), CPLR 3215 (c), CPLR 3216, CPLR 3404, violation of any court rules or individual part rules, failure to comply with any court scheduling orders, default due to nonappearance for conference or at a calendar call, or failure to timely submit any order or judgment, regardless of the specificity, or lack.thereof, utilized in the dismissal order. The amendment deletes the requirement that the court "set forth on the record the specific conduct constituting the neglect, which conduct shalJ demonstrate a general pattern of delay in proceeding with the litigation" (CPLR 205 [a]). This language, added in 2008 (L 2008, ch 156, § 1), has occasioned erroneous judicial interpretations that the court ' s recitation of the "specific conduct .. . [which] demonstrate[s] a general pattern of delay" is a condition precedent to the bar against an extension of the statute of limitations for a neglect based dismissal (see Wells Fargo Bank NA . v Kehres, 199 AD3d 869, 869-871 [2d Dept 2021]; US. Bank NA ., Tr. to Bank ofAm., NA . v Kim, 192 AD3d 612, 613 [1st Dept 2021 ], appeal dismissed 37 NY3d 932 [202 I]; United States Bank NA . v Jalas, 195 AD3d 1122, 1123-1125 [3d Dept 2021]; Deutsche Bank Natl. Trust Co. v Baquero~ 192 AD3d 660. 661-665 [2d Dept 2021 ]; HSBC Bank USA, N.A. v Janvier, 187 AD3d 999, 1001 [2d Dept 2020]). Although we intended for the 2008 amendment to bring clarity as to "what specifically constitutes a neglect to prosecute particularly where it falls outside Rule 3216" (Introducer' s Mem in Support, Bill Jacket, L 2008, ch 156 at 6, 10), it appears the implemented language has not provided the clarity we sought, at least not in the context of mortgage foreclosure 10 FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 actions (see generally NYSBA Mem in Opposition, Bill Jacket, L 2008, ch 156 at 12-13 [pointing out potential shortcomings of the amendment]). To be clear, the Legislature never intended to bring clarity to the neglect-based termination carve- out of CPLR 205 (a) by hinging the same upon subjectivities, such as the idiosyncratic writing and descripti ve preferences inherent to, and invariably exercised by, different judges and justices of the courts (se e generally CPLR 2219[a] [empowering the courts with the discretion to "give the detennination or direction in such details as the judge deems proper"]). Under such an approach, the same conduct could (and has) lead to differing statute of limitations results, depending upon how detailed the prior court' s recitation of the facts constituting the neglect in each instance. Such an outcome is contrary to the public policy of the statute oflimitations of promoting the objectives of "finality , certainty and predictability," to the benefit of both plaintiffs and defendants (A CE Sec. Corp., 25 NY3d at 593 ; Matier of Regina Metro. Co. , LLC v New York Stale Division of Haus. & Community Renewal, 35 NY3d 332, 3 72 [2020]). Nor should any act or omission of a court in detailing the extent of the neglect be the arbiter of the expiration or extension of the statute of limitations, especially where it is the subsequent court, not the nisi prius, that is given the ultimate power of review and interpretation (see Sokoloff v Schor, 176 AD3d 120, 129-1 33 [2d Dept 2019] [analyzing interplay ofCPLR 205(a) with 5519(a)] ; cf, CPLR 201 ). Rather, it is the dismissal based on the fact of neglect, itself, not the extent to which the court detailed the conduct constituting such neglect, that is determinative. Neglectful plaintiffs should not avoid the consequences of their neglect depending on how concise a prior court' s determination reads on any given day, and it has never been the Legislature ' s intent for such subjectivities to control important matters concerning the application of the statute of limitations and the limjted availability of extensions thereto . All this is now clarified by CPLR 205-a (a). Second, CPLR 205 (a), as amended and reconstituted under CPLR 205-a (a) and (a) (1), codifies the Court' s holding in Reliance Ins. Co. v Polyvision Corp (9 NY3d 52, 57-58 [2007]; accord U.S. Bank N A. v DLI Mtge. Capital, Inc., 141 AD3d 431,433 [1st Dem 2016], affd33 NY3d 72 [2019]; Craft EM CLO 2006-1, Ltd. v Deutsche Bank AG, 178 AD3d 552, 553 [lst_Dept 2019]) and clarifies the six-month extension afforded under the section is available only to the original plaintiff and is not intended to be extended to a different party because that "would open a new tributary in the law, presumably available to individuals as well as corporations, and breathe life into otherwise stale claims" (R eliance, 9 NY3d at 58). " [M]indful of the potential ramifications of a rule allowing" otherwise, the Court correctly directed that CPLR 205 (a) should be read "as it was written by the Legislature ... ." (id.). Yet, in direct contravention of Reliance, the majority in Eitani held that Wells Fargo Bank, N.A. (Wells Fargo), the assignee of a mortgage loan originated by Argent Mortgage Company, LLC (Argent), was entitled to the six-month extension afforded to "the plaintiff' under CPLR 205 (a) because the mortgage loan was assigned by Argent to Wells Fargo during the pendency of the prior action, wmch was commenced by Argent (see 148 AD3d at 200-203). This holding is wrong and must not be followed. In Eitani, Wells Fargo was not asserting the rights of Argent in the new action. That is, Wells Fargo did not claim to be acting on behalf or for the benefit of Argent. Rather, as correctly explained by the dissent in Eitani, Wells Fargo was seeking to enforce its own rights in and to the mortgage loan; the rights it acquired from Argent (148 AD3d at 206-209 [Leventhal, 11 FILED: RICHMOND COUNTY CLERK 10/19/2023 02:00 PM INDEX NO. 135266/2015 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 10/19/2023 J., dissenting]). Therefore, Eitani and its progeny should not be followed (e.g., Gordon, 158 AD3d at 837-839). Accordingly, CPLR 205-a (a) (l) now makes clear that unless acting on behalf of the or;ginal plaintiff, a successor in interest or assignee of that original plaintiff is not entitled to the six-month extension afforded under the subdivision, unless pleading and proving he, she, or it is acting on behalf of the original plaintiff. For instance, if a mortgage loan were held in a mortgage backed securitized loan trust, and the original trustee of that loan trust, Bank A, which previously commenced a timely foreclosure proceeding on behalf of the loan trust that terminated for a reason not specified under CPLR 205-a (a), is succeeded