Preview
FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------------X Index No: 700848/2023
AMYRA 003 EQUITIES INC.,
Plaintiff(s), AFFIRMATION
IN OPPOSITION
-against – TO CROSS MOTION
U.S. BANK N.A.,
Defendant(s).
------------------------------------------------------------------------X
Matthew J. Routh, Esq., an attorney admitted to practice before the Courts of the State
New York hereby affirms the following to be true under the penalty of perjury:
I am a senior associate at the law firm Shiryak, Bowman, Anderson, Gill & Kadochnikov
LLP the attorneys for Plaintiff, AMYRA 003 EQUITIES INC., (hereinafter “Plaintiff”) and as
such am fully familiar with the facts herein. I make this affirmation in opposition to Defendant’s
cross motion.
I. PRELIMINARY STATEMENT
1. As a preliminary matter, Defendant’s instant motion must be denied as a matter of
law in accordance with 2nd Department precedent because Defendant has completely failed to
rebut the presumption of proper service. See NYSCEF Docket No. 19. In fact, Defendant admits
timely receiving the Summons and Complaint, and the conclusory, unsubstantiated allegations of
what amounts to “office error” are insufficient as a matter of law. Remington Investments, Inc. v
Seiden, 240 AD2d 647 [2d Dept 1997]; see also Lt. Luke’s Roosevelt Hosp. v. Blue Ridge Ins.
Co, 21 A.D.3d 946 (2d Dep’t 2005).
2. Although this Court is not required to determine whether Defendant has a
meritorious defense because Defendant failed to proffer a reasonable excuse for their default,
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See, e.g., U.S. Bank v. Arias, 85 A.D.3d 1014 (2d Dep’t 2011), Defendant has also failed to
demonstrate that genuine triable issues of fact exist. See NYSCEF Docket Nos. 20, 21. Here,
Plaintiff has established their entitlement to summary judgment pursuant to RPAPL §1501, and
Defendant’s instant motion demonstrates a lack of any meritorious defenses.
3. Consequently, Plaintiff’s motion should be granted in its’ entirety and
Defendant’s cross motion denied.
II. FACTUAL AND PROCEDURAL HISTORY
4. On or about August 27th, 2022, Plaintiff acquired real property known as 150-43
118th Avenue, Queens NY (“Subject Premises” or “Subject Property”). See NYSCEF Docket
No. 5., 11.
i. 2008 Foreclosure.
5. On June 3rd, 2008, Defendant commenced a foreclosure action (“2008
Foreclosure”) as against non-party and mortgagor Kazi Zakir regarding the Subject Mortgage
(NYSCEF Docket No. 2) and Subject Property. See NYSCEF Docket No. 3. By the language of
the Summons and Complaint, Defendant duly elected to accelerate the Subject Mortgage and
made all amounts due. Id.
6. On or about December 14th, 2018, the 2008 Foreclosure Action was voluntarily
discontinued by Defendant. See NYSCEF Docket No. 4.
ii. Instant 2023 Quiet Title Action.
7. On or about January 13th, 2023, Plaintiff commenced the instant action pursuant
to RPAPL Article 15 to quiet title on the Subject Property as the statute of limitations on the
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Subject Mortgage expired on June 4th, 2015, nearly ten years ago. See CPLR § 213(4); see
NYSCEF Docket Nos. 1, 2, 3, 4, 5.
8. On or about February 9th, 2023, Plaintiff served Defendant. See NYSCEF Docket
No. 6.
9. On or about May 19th, 2023, Plaintiff served Defendant with an additional notice
pursuant to CPLR § 3215(g). See NYSCEF Docket No. 7.
10. On or about June 20th, 2023, Defendant filed a notice of appearance. See
NYSCEF Docket No. 8.
11. On or about July 17th, 2023, Plaintiff filed a notice of motion for default judgment
as against Defendant. See NYSCEF Docket Nos. 9, 10, 11, 12, 13, 14, 15.
12. On or about September 26th, 2023, Defendant filed a notice of cross motion
seeking to vacate their default and compel acceptance of their late answer. See NYSCEF Docket
Nos. 17, 18, 19, 20, 21, 22, 23, 24, 25, 26.
III. LEGAL ARGUMENT
A. PURSUANT TO CPLR §§5015(A)(1) AND 3012(d), DEFENDANT’S MOTION
SHOULD BE DENIED IN ITS’ ENTIRETY.
i. CPLR §§5015(a)(1) and 3012(d).
13. Pursuant to CPLR § 5015(a)(1), “[t]he court which rendered a judgment or order
may relieve a party from it upon such terms as may be just, on motion of any interested person
with such notice as the court may direct, upon the ground of excusable default….” N.Y. C.P.L.R.
§ 5015(a)(1) (McKinney 2017). A party seeking to vacate a default in opposing a motion must
demonstrate both a reasonable excuse for the default and the existence of a meritorious defense
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to the motion and action. Eugene Di Lorenzo, Inc. v. A.C Dutton Lumber Co., 67 N.Y.2d 138,
141 (1986); Montague v. Rivera, 50 A.D.3d 656 (2d Dep’t 2008); Mora v. Scarpitta, 52 A.D.3d
663 (2d Dep’t 2008); Czarnikv. Urban, 10 A.D.3d 627, 628 (2d Dep’t 2004); Sarva v.
Chakravorty, 14 A.D.3d 689 (2d Dep’t 2005). The determination of what constitutes a
reasonable excuse lies within the sound discretion of the Supreme Court. HSBC Bank USA Nat’l
Ass’n v. Powell, 148 A.D.3d 1123 (2d Dep’t 2017); Maspeth Fed. Sav. & Loan Ass’n v.
McGown, 77 A.D.3d 889, 890 (2d Dep’t 2010).
14. A process server's affidavit of service constitutes prima facie evidence of valid
service. see American Home Mtge. Servicing, Inc. v. Gbede, 127 A.D.3d 1004, 1005, 5
N.Y.S.3d 879; Velez v. Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84; Edwards, Angell, Palmer
& Dodge, LLP v. Gerschman, 116 A.D.3d 824, 825, 984 N.Y.S.2d 392). A mere conclusory
denial of service is insufficient to rebut the presumption of proper service arising from the
process server's affidavit. see Matter of Romero v. Ramirez, 100 A.D.3d 909, 910, 955
N.Y.S.2d 353; Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682 ) (emphasis added).
In order to warrant a hearing to determine the validity of service of process, the denial of service
must be substantiated by specific, detailed facts that contradict the affidavit of service. see e.g.
Wachovia Bank, N.A. v. Greenberg, 138 A.D.3d 984, 985, 31 N.Y.S.3d 110; Machovec v.
Svoboda, 120 A.D.3d 772, 992 N.Y.S.2d 279; Wells Fargo Bank, N.A. v. Christie, 83 A.D.3d
824, 921 N.Y.S.2d 127). However, no hearing is required when the Defendant fails to specific
facts to rebut the statements in the process server’s affidavit. See U.S. Bank v. Arias, 85 A.D. 3d
1014 (2d Dep’t 2011)
15. Alternatively, under CPLR§ 3012(d), a plaintiff must demonstrate both a
reasonable excuse for the delay or default in serving the complaint and a potentially meritorious
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cause of action. Trokaik Realty, Inc. v HP Yuco, HDFC, Inc., 188 AD3d 1281 [2d Dept 2020]
(citing CPLR 3012[d]; Percival v. Northwell Health Sys., 173 A.D.3d 916, 917, 102 N.Y.S.3d
263; Ganchrow v. Kremer, 157 A.D.3d 771, 772, 69 N.Y.S.3d 352). While the court has the
discretion to accept law office failure as a reasonable excuse, a conclusory, undetailed, and
unsubstantiated claim of law office failure does not amount to a reasonable excuse Trokaik
Realty, Inc. v HP Yuco, HDFC, Inc., 188 AD3d 1281 [2d Dept 2020] (citing Okun v. Tanners,
11 N.Y.3d 762, 763, 867 N.Y.S.2d 25, 896 N.E.2d 660; Mazzola v. Village Hous. Assoc., LLC,
164 A.D.3d 668, 669, 83 N.Y.S.3d 127).
16. In Trokaik, supra at 1282, the 2nd Department reversed the trial level’s decision
and order granting a motion pursuant to CPLR 3012(d), reasoning that “[t]he excuse proffered by
the plaintiff, its counsel's office prepared a complaint, but “inadvertently” failed to obtain a
verification and upload the complaint to the NYSCEF system, does not constitute a detailed and
credible explanation of the delay.” Id.
1. Defendant fails to proffer a reasonable excuse because Defendant admits receiving
service and the excuse proffered is vague, conclusory and does not constitute a detailed and
credible explanation of the delay.
17. Here, on or about February 9th, 2023, Plaintiff served Defendant. See NYSCEF
Docket No. 6. Thereafter, on or about May 19th, 2023, Plaintiff served Defendant with an
additional notice pursuant to CPLR § 3215(g). See NYSCEF Docket No. 7.
18. As such, Plaintiff’s affidavit is prima facie valid, and Defendant has the burden of
rebutting the presumption of proper service through detailed and specific facts. see American
Home Mtge. Servicing, Inc. v. Gbede, 127 A.D.3d 1004, 1005, 5 N.Y.S.3d 879; Velez v.
Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84; Edwards, Angell, Palmer & Dodge, LLP v.
Gerschman, 116 A.D.3d 824, 825, 984 N.Y.S.2d 392).
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19. In response, Defendant admits receiving the Summons and Complaint on
February 9th, 2023. See NYSCEF Docket No. 19. Afterwards, Defendant’s representative
discusses vague, nondescript “procedures” that were inadvertently non followed by Defendant,
and then states in conclusory fashion that the Pleading was sent to outsidre counsel due to an
“administrative error” and that outside counsel did not get retained until several months later.
See NYSCEF Docket No. 19 (¶¶3-5).
20. In essence, Defendant’s failure to file a verified answer is an unsubstantiated,
conclusory claim of law office failure, which the 2nd Department has roundly rejected. See Lt.
Luke’s Roosevelt Hosp. v. Blue Ridge Ins. Co, 21 A.D.3d 946 (2d Dep’t 2005)(Defense
counsel’s excuse of law office failure was conclusory and devoid of any detailed factual
allegations); Vardaros v. Zapas, 105 A.D.3d 1037 (2d Dep’t 2013); Morris v. Metropolitan
Transp. Authority, 191 A.D.2d 682 (2d Dep’t 1993)(Allegation of law office failure did not
warrant granting defendants' motion to vacate prior order striking affirmative defense of statute
of limitations; defendants' excuse was limited to self-serving and unsubstantiated allegations of
defendants' prior counsel that upon receipt of plaintiffs' motion papers, he spoke by telephone
with unidentified employee of office of county clerk, who advised him that search of records of
that office failed to reveal existence of plaintiffs' motion on any calendar).
21. Consequently, Defendant’s admission of timely service and bare denial of service,
in and of itself, is insufficient to rebut the prima facie proof of proper service established by the
process server’s affidavit. See, e.g., Matter of Romero v. Ramirez, 100 A.D.3d 909 (2d Dep’t
2012).
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B. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF
LAW AS THE STATUTE OF LIMITATIONS FOR THE MORTGAGE
EXPIRED ON JUNE 4th, 2014.
22. Since Defendant failed to establish lack of actual notice, this court need not
evaluate whether Defendant has a potentially meritorious defense to this action. See e.g.
Andrews v Wartburg Receiver, LLC, 203 AD3d 1000 [2d Dep’t 2022].
23. However, assuming, arguendo, this court determines Defendant proffered a
reasonable excuse, Defendant does not have a meritorious defense to this action, and allowing
Defendant to interpose an Answer would be a waste of judicial resources.
i. CPLR § 213 and RPAPL Article 15 Legal Standard.
24. When litigants fail to diligently pursue their rights, they negate fundamental
societal objectives of order and commercial predictability. The New York Court of Appeals has
recently emphasized the importance of the application of statutes of limitation in the application
of New York law, “our statutes of limitation serve the same objectives of finality, certainty
and predictability that New York's contract law endorses. Statutes of limitation not only save
litigants from defending stale claims, but also express a societal interest or public policy of
giving repose to human affairs.” Bank of N.Y. v Silverberg, 86 AD3d 274 [2d Dept 2011]
[internal citations and quotes omitted]; ACE Sec. Corp. v. DB Structured Prods., Inc., 25
N.Y.3d 581 [2015]).
25. The Statute of Limitations for mortgage foreclosure in New York is governed by
CPLR § 213 (4) which states, the following actions must be commenced within six years: “an
action upon a bond or note, the payment of which is secured by a mortgage upon real property,
or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any
interest therein.” CPLR § 213 (4).
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26. Thus, it is well settled that an action to foreclose a mortgage may be brought to
recover unpaid sums which were due within the six-year period immediately preceding the
commencement of the action. (see CPLR § 213 (4); Wells Fargo Bank, N.A. v. Burke, 94 AD3d
980, 982 [2d Dep’t 2012]). “[W]ith respect to a mortgage payable in installments, there are
separate causes of action for each installment accrued, and the Statute of Limitations [begins] to
run, on the date each installment [becomes] due.” (Wells Fargo Bank, N.A. v. Cohen, 80 AD3d
753, 754 [2d Dep’t 2011] [internal quotations omitted]). “However, even 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” (Burke, 94 AD3d at 982). “The filing of
the summons and complaint and lis pendens in an action accelerate[s] the note and mortgage.”
(Clayton Nat’l, Fnc. v. Guidi, 307 AD2d 982, 982 [2d Dep’t 2003]). “Once the mortgage debt
[is] accelerated, the borrowers’ right and obligation to make monthly installments cease[s] and
all sums bec[ome] immediately due and payable.” (Fed. Nat’l Mtge. Ass’n v. Mebane, 208
AD2d 892,894 [2d Dep’t 1994]).
27. In proving its prima facie entitlement to judgment as a matter of law declaring
that the subject mortgage is invalid pursuant to RPAPL 1501(4), the Plaintiff property owner
must: (1) establish that a foreclosure action commenced by the defendant mortgagee was
dismissed; See JBR Constr. Corp. v Staples, 71 AD3d 952, 953 (2d Dept 2010); See also Staples
v Jeff Hunt Devs., Inc., 56 AD3d 459, 460 (2d Dept 2008); and (2) that the commencement of a
new foreclosure action would be time-barred by the applicable six-year statute of limitations. See
CPLR 213(4); LePore v Shaheen, 32 AD3d 1330, 1331 (4th Dept 2006); Corrado v Petrone, 139
AD2d 483 (2d Dept 1988); see also Plaia v Safonte, 45 AD3d 747, 748 (2d Dept 2007); Zinker v
Makler, 298 AD2d 516, 517 (2d Dept 2002).
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28. In opposition, the defendant(s) must raise a triable issue of fact as to whether the
statute of limitations was tolled or revived. See Staples, 71 AD3d at 953; see also Alvarez v
Prospect Hosp., 68 NY2d 320 (1986); Rack v Rushefsky, 5 AD3d 753, 753-54 (2d Dept 2004).
ii. New York State Law Regarding Acceleration of a Mortgage Prior to Engel.
29. In New York, it is well-settled that “an action to foreclose a mortgage may be
brought to recover unpaid sums which were due within the six-year period immediately
preceding the commencement of the action.” Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980,
982 (2d Dep’t 2012) (citing N.Y. C.P.L.R. § 213(4)). Specifically, CPLR section 213(4),
provides in relevant part
30. The following actions must be commenced within six years:
…
4. an action upon a bond or note, the payment of which is secured by a mortgage
upon real property, or upon a bond or note and mortgage so secured, or upon a
mortgage of real property, or any interest therein.
N.Y. C.P.L.R. § 213(4).
31. “With respect to a mortgage payable in installments, separate causes of action
accrue[] for each installment that is not paid, and the statute of limitations begins to run, on the
date each installment becomes due.” Burke, 94 A.D.3d at 982 (citing Wells Fargo Bank, N.A. v.
Cohen, 80 A.D.3d 753, 754 (2d Dep’t 2011), Loiacono v. Goldberg, 240 A.D.2d 476, 477 (2d
Dep’t 1997), Pagano v. Smith, 201 A.D.2d 632, 633 (2d Dep’t 1994)). Crucially in this case,
“‘even 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.’” Burke, 94 A.D.3d
at 982 (citing EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605 (2d Dep’t 2001)).
32. There are three ways a mortgage can be accelerated:
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One way is in the form of an acceleration notice transmitted to the borrower by
the creditor or the creditor’s servicer. To be effective, the acceleration notice to
the borrower must be clear and unequivocal. A second form of acceleration,
which is self-executing, is the obligation of certain borrowers to make a balloon
payment under the terms of the note at the end of the pay-back period. A third
form of acceleration exists when a creditor commences a foreclosure upon a
note and mortgage and seeks, in the complaint, payment of the full balance
due.
Milone v. U.S. Bank Natl. Assn., 164 A.D.3d 145, 152 (2d Dep’t 2018) (citations omitted)
(emphasis added).
33. As this Court has recognized, “‘[a] lender may revoke its election to accelerate the
mortgage, but it must do so by an affirmative act of revocation occurring during the six-year
statute of limitations period subsequent to the initiation of the prior foreclosure action.’” Cortes-
Goolcharran v. Rosicki, Rosicki & Associates, P.C., 2018 WL 3748154, at *3 (E.D.N.Y. August
7, 2018) (citing NMNT Realty Corp. v. Knoxville 2012 Tr., 151 A.D.3d 1068, 1069–70, 58
N.Y.S.3d 118, 120 (2d Dep’t 2017)); See also U.S. Bank Tr., N.A. v. Aorta, 167 A.D.3d 807,
808, 89 N.Y.S.3d 717, 719 (2d Dep’t 2018).
34. “The filing of the summons and complaint and lis pendens in an action . . .
accelerate[s] the note and mortgage.” Clayton Nat’l Fnc. v Guidi, 307 AD2d 982 (2d Dept 2003)
(citations omitted). “Once the mortgage debt [is] accelerated, the borrowers’ rights and
obligation to make monthly installments cease[s] and all sums bec[ome] immediately due and
payable.” Fed. Nat’l Mtge. Ass’n v Mebane, 208 AD2d 892, 894 (2d Dept 1994). Moreover,
execution of a “stipulation of discontinuance [does] not, by itself, constitute an affirmative act to
revoke its election to accelerate” if the stipulation is silent on the issue of the election to
accelerate. Bank of New York Mellon v. Craig, 169 A.D.3d 627, 93 N.Y.S.3d 425, 427–28 (2d
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Dep’t Feb. 6, 2019). Furthermore, an order of discontinuance, in itself, is insufficient to evidence
an affirmative act to revoke the election to accelerate the mortgage debt. Aorta, 167 A.D.3d at
809.
iii. Engel Holds that Voluntary Discontinuance Constitutes a Revocation of Acceleration.
35. In 2021, the New York Court of Appeals reversed decades of lower court
decisions and determined, inter alia, that the voluntary discontinuance of a foreclosure action is
sufficient to serve as an affirmative act of revocation and restart the statute of limitations.
Freedom Mortgage Corp. v. Engel, 169 N.E.3d 912, 917 (2021). Specifically, the Court held that
the voluntary discontinuance “constitutes an affirmative act of revocation of that acceleration as
a matter of law, absent an express, contemporaneous statement to the contrary by the
noteholder.” Id. at 926. The Court of Appeals reasoned that such a clear rule purportedly benefits
mortgagors by “allowing borrowers to take advantage of the opportunity afforded by the de-
acceleration— reinstatement of the right to pay arrears and make installment payments,
eliminating the obligation to immediately pay the entire outstanding principal amount in order to
avoid losing their homes.” Id. at 926-927.
36. However, whether intended or not, in creating a purported “bright line rule,” the
Court of Appeals breathed life into countless ancient foreclosure actions, such as the 2008
Foreclosure that is part of the instant litigation, and essentially sanctioned the years of neglect by
mortgage lenders in prosecuting these cases by rendering the statute of limitations de facto
meaningless.
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iv. Foreclosure Abuse Prevention Act overrules Engel.
37. In December of 2022, the State Legislature enacted the Foreclosure Abuse
Prevention Act (“FAPA”), which was specifically passed to overrule Freedom Mortgage Corp. v.
Engel, 169 N.E.3d 912, 917 (2021) and was passed in direct response to long languishing
foreclosure actions in New York as well as curtail the ever-growing practice of the court system
sanctioning mortgage companies, such as Defendant, circumventing the statute of limitations.
Attached hereto as Exhibits A-B.
38. FAPA’s amendments to CPLR § 3217 and CPLR § 213(4) categorically resolve
this action in favor of Plaintiff as discussed below. The Legislative intent behind FAPA is
emphatically clear- to overrule Engel- as discussed in pertinent part in FAPA’s Sponsor Memo
as follows:
There is an urgent need to pass this bill to overrule the Court of
Appeals' recent decision in Freedom Mtge. Corp. v Engel (37
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 clear
detriment of New York home-owners. No other civil plaintiff in
this state is extended such unilateral and unfettered powers.
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 of limitations not
only applies equally to all, but is impervious to unilateral
manipulation. In doing so, the bill aims to further clarify and
reaffirm the legislative intent of a wide spectrum of laws 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
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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 (1979)). 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 Exhibit B.
39. As relevant hereto, Section 8 of FAPA amended CPLR §3217 in pertinent part as
follows:
Effect of discontinuance upon certain instruments. In any action on
an instrument described under subdivision four of section two
hundred thirteen of this chapter, the voluntary discontinuance of
such action, whether on motion, order, stipulation or by notice,
shall not, in form or effect, waive, postpone, cancel, toll,
extend, revive or reset the limitations period to commence an
action and to interpose a claim, unless expressly prescribed by
statute.
See Exhibit A (emphasis added).
40. Once again, the Legislative intent behind FAPA seeks to overrule judicial
overreach with respect to extreme deference toward mortgage lenders and the banking industry
regarding the statute of limitations, as discussed in pertinent part in the Act’s Sponsor Memo as
follows:
CPLR 3217 (e) is expressly intended to overrule Engel. The new
subdivision clarifies that unless made in strict compliance with the
General Obligations Law, the mere voluntary dismissal or
discontinuance of a foreclosure action, whether by motion, order,
stipulation, or notice, cannot waive, postpone, cancel, toll, extend,
revive, or reset the statute of limitations period, nor the expiration
thereof (e.g., Petito, 85 NY2d at 8-9). The phrase "unless expressly
prescribed by statute" is in recognition of the fact that existing
New York statutory law allows parties a strictly defined means of
extending a statute of limitations after a claim predicated on non-
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payment of a mortgage debt has accrued (Gen. Oblig. Law 17-
105).
See Exhibit B.
41. Lastly, FAPA provides that same “shall take effect immediately and shall apply to
all actions commenced on an instrument described under [CPLR § 213 (4)] in which a final
judgment of foreclosure and sale has not been enforced” (FAPA, § 10), and same was signed into
law on December 30, 2022. See Exhibits A-B.
42. Here, FAPA is patently applicable, as a final judgment of foreclosure and sale has
not and will not be enforced.
1. Defendant cannot demonstrate a meritorious defense to this action because the 2008
Foreclosure Action accelerated the Subject Mortgage, the discontinuance of the 2008
Foreclosure Action did no revoke acceleration, and as such, the Subject Mortgage is past
the statute of limitations as of June 4th, 2014. thereby rendering the Subject Mortgage time
barred as a matter of law.
43. Here, it is undisputed that on June 3rd, 2008, Defendant commenced the 2008
Foreclosure Action as against non-party and mortgagor Kazi Zakir regarding the Subject
Mortgage (NYSCEF Docket No. 2) and Subject Property. See NYSCEF Docket No. 3. By the
language of the Summons and Complaint, Defendant duly elected to accelerate the Subject
Mortgage and made all amounts due. Id. Thereafter the 2008 Foreclosure Action was voluntarily
discontinued by Defendant. See NYSCEF Docket No. 4.
44. As a result, Defendant had until June 4th , 2014 to commence another foreclosure
action. see Nationstar Mortgage LLC v. Islam, 158 AD3d 553 [1st Dep’t 2018]).
45. Under the Section 4(h) of FAPA“…no party may, in form or effect,
unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or otherwise
purport to effect a unilateral extension of the limitations period prescribed by law to
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commence an action and to interpose the claim, unless expressly prescribed by statute.” See
Exhibit A (emphasis added).
46. Moreover, Section 10 of the Act states in pertinent part that “…[t]his act shall
take effect immediately and shall apply to all actions commenced on an instrument described
under subdivision four of section two hundred thirteen of the civil practice law and rules in
which a final judgment of foreclosure and sale has not been enforced.” Id. (emphasis added).
47. Consequently, Defendant is time barred from commencing a foreclosure action,
and the Subject Mortgage should be rendered extinguished as a matter of law pursuant to
R.P.A.P.L. Article 15.
48. Therefore, Defendant’s cross motion should be denied in its’ entirety and
Plaintiff’s motion seeking a default judgment as against Defendant should be granted in its’
entirety.
49. No prior application for the relief requested herein has been made of any Court.
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WHEREFORE, it is therefore respectfully requested that the Court issue an order:
1. Denying Defendant’s cross motion in its’ entirety; and
2. Granting Plaintiff’s motion; and
3. For such further relief as to this Court seems just, proper, and equitable.
Dated: November 3rd, 2023
Kew Gardens, New York
Yours, etc.,
SHIRYAK, BOWMAN, ANDERSON
GILL & KADOCHNIKOV, LLP
_________________________________
By: Matthew J. Routh, Esq.
Attorneys for Plaintiff
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ATTORNEY CERTIFICATION
I, Matthew J. Routh, Esq., hereby certify, under penalty of perjury, and as an officer of
the court, that to the best of my knowledge, information and belief, formed after an inquiry
reasonably under the circumstances, the presentation of the papers or the contentions herein are
not frivolous as defined in 22 NYCRR Section 130-1.1(c).
Dated: November 3rd, 2023
Kew Gardens, New York
___________________________
By: Matthew J. Routh, Esq.
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Preview
FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------X Index No: 700848/2023 AMYRA 003 EQUITIES INC., Plaintiff(s), AFFIRMATION IN OPPOSITION -against – TO CROSS MOTION U.S. BANK N.A., Defendant(s). ------------------------------------------------------------------------X Matthew J. Routh, Esq., an attorney admitted to practice before the Courts of the State New York hereby affirms the following to be true under the penalty of perjury: I am a senior associate at the law firm Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP the attorneys for Plaintiff, AMYRA 003 EQUITIES INC., (hereinafter “Plaintiff”) and as such am fully familiar with the facts herein. I make this affirmation in opposition to Defendant’s cross motion. I. PRELIMINARY STATEMENT 1. As a preliminary matter, Defendant’s instant motion must be denied as a matter of law in accordance with 2nd Department precedent because Defendant has completely failed to rebut the presumption of proper service. See NYSCEF Docket No. 19. In fact, Defendant admits timely receiving the Summons and Complaint, and the conclusory, unsubstantiated allegations of what amounts to “office error” are insufficient as a matter of law. Remington Investments, Inc. v Seiden, 240 AD2d 647 [2d Dept 1997]; see also Lt. Luke’s Roosevelt Hosp. v. Blue Ridge Ins. Co, 21 A.D.3d 946 (2d Dep’t 2005). 2. Although this Court is not required to determine whether Defendant has a meritorious defense because Defendant failed to proffer a reasonable excuse for their default, 1 1 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 See, e.g., U.S. Bank v. Arias, 85 A.D.3d 1014 (2d Dep’t 2011), Defendant has also failed to demonstrate that genuine triable issues of fact exist. See NYSCEF Docket Nos. 20, 21. Here, Plaintiff has established their entitlement to summary judgment pursuant to RPAPL §1501, and Defendant’s instant motion demonstrates a lack of any meritorious defenses. 3. Consequently, Plaintiff’s motion should be granted in its’ entirety and Defendant’s cross motion denied. II. FACTUAL AND PROCEDURAL HISTORY 4. On or about August 27th, 2022, Plaintiff acquired real property known as 150-43 118th Avenue, Queens NY (“Subject Premises” or “Subject Property”). See NYSCEF Docket No. 5., 11. i. 2008 Foreclosure. 5. On June 3rd, 2008, Defendant commenced a foreclosure action (“2008 Foreclosure”) as against non-party and mortgagor Kazi Zakir regarding the Subject Mortgage (NYSCEF Docket No. 2) and Subject Property. See NYSCEF Docket No. 3. By the language of the Summons and Complaint, Defendant duly elected to accelerate the Subject Mortgage and made all amounts due. Id. 6. On or about December 14th, 2018, the 2008 Foreclosure Action was voluntarily discontinued by Defendant. See NYSCEF Docket No. 4. ii. Instant 2023 Quiet Title Action. 7. On or about January 13th, 2023, Plaintiff commenced the instant action pursuant to RPAPL Article 15 to quiet title on the Subject Property as the statute of limitations on the 2 2 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 Subject Mortgage expired on June 4th, 2015, nearly ten years ago. See CPLR § 213(4); see NYSCEF Docket Nos. 1, 2, 3, 4, 5. 8. On or about February 9th, 2023, Plaintiff served Defendant. See NYSCEF Docket No. 6. 9. On or about May 19th, 2023, Plaintiff served Defendant with an additional notice pursuant to CPLR § 3215(g). See NYSCEF Docket No. 7. 10. On or about June 20th, 2023, Defendant filed a notice of appearance. See NYSCEF Docket No. 8. 11. On or about July 17th, 2023, Plaintiff filed a notice of motion for default judgment as against Defendant. See NYSCEF Docket Nos. 9, 10, 11, 12, 13, 14, 15. 12. On or about September 26th, 2023, Defendant filed a notice of cross motion seeking to vacate their default and compel acceptance of their late answer. See NYSCEF Docket Nos. 17, 18, 19, 20, 21, 22, 23, 24, 25, 26. III. LEGAL ARGUMENT A. PURSUANT TO CPLR §§5015(A)(1) AND 3012(d), DEFENDANT’S MOTION SHOULD BE DENIED IN ITS’ ENTIRETY. i. CPLR §§5015(a)(1) and 3012(d). 13. Pursuant to CPLR § 5015(a)(1), “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of excusable default….” N.Y. C.P.L.R. § 5015(a)(1) (McKinney 2017). A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense 3 3 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 to the motion and action. Eugene Di Lorenzo, Inc. v. A.C Dutton Lumber Co., 67 N.Y.2d 138, 141 (1986); Montague v. Rivera, 50 A.D.3d 656 (2d Dep’t 2008); Mora v. Scarpitta, 52 A.D.3d 663 (2d Dep’t 2008); Czarnikv. Urban, 10 A.D.3d 627, 628 (2d Dep’t 2004); Sarva v. Chakravorty, 14 A.D.3d 689 (2d Dep’t 2005). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. HSBC Bank USA Nat’l Ass’n v. Powell, 148 A.D.3d 1123 (2d Dep’t 2017); Maspeth Fed. Sav. & Loan Ass’n v. McGown, 77 A.D.3d 889, 890 (2d Dep’t 2010). 14. A process server's affidavit of service constitutes prima facie evidence of valid service. see American Home Mtge. Servicing, Inc. v. Gbede, 127 A.D.3d 1004, 1005, 5 N.Y.S.3d 879; Velez v. Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84; Edwards, Angell, Palmer & Dodge, LLP v. Gerschman, 116 A.D.3d 824, 825, 984 N.Y.S.2d 392). A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit. see Matter of Romero v. Ramirez, 100 A.D.3d 909, 910, 955 N.Y.S.2d 353; Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682 ) (emphasis added). In order to warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service. see e.g. Wachovia Bank, N.A. v. Greenberg, 138 A.D.3d 984, 985, 31 N.Y.S.3d 110; Machovec v. Svoboda, 120 A.D.3d 772, 992 N.Y.S.2d 279; Wells Fargo Bank, N.A. v. Christie, 83 A.D.3d 824, 921 N.Y.S.2d 127). However, no hearing is required when the Defendant fails to specific facts to rebut the statements in the process server’s affidavit. See U.S. Bank v. Arias, 85 A.D. 3d 1014 (2d Dep’t 2011) 15. Alternatively, under CPLR§ 3012(d), a plaintiff must demonstrate both a reasonable excuse for the delay or default in serving the complaint and a potentially meritorious 4 4 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 cause of action. Trokaik Realty, Inc. v HP Yuco, HDFC, Inc., 188 AD3d 1281 [2d Dept 2020] (citing CPLR 3012[d]; Percival v. Northwell Health Sys., 173 A.D.3d 916, 917, 102 N.Y.S.3d 263; Ganchrow v. Kremer, 157 A.D.3d 771, 772, 69 N.Y.S.3d 352). While the court has the discretion to accept law office failure as a reasonable excuse, a conclusory, undetailed, and unsubstantiated claim of law office failure does not amount to a reasonable excuse Trokaik Realty, Inc. v HP Yuco, HDFC, Inc., 188 AD3d 1281 [2d Dept 2020] (citing Okun v. Tanners, 11 N.Y.3d 762, 763, 867 N.Y.S.2d 25, 896 N.E.2d 660; Mazzola v. Village Hous. Assoc., LLC, 164 A.D.3d 668, 669, 83 N.Y.S.3d 127). 16. In Trokaik, supra at 1282, the 2nd Department reversed the trial level’s decision and order granting a motion pursuant to CPLR 3012(d), reasoning that “[t]he excuse proffered by the plaintiff, its counsel's office prepared a complaint, but “inadvertently” failed to obtain a verification and upload the complaint to the NYSCEF system, does not constitute a detailed and credible explanation of the delay.” Id. 1. Defendant fails to proffer a reasonable excuse because Defendant admits receiving service and the excuse proffered is vague, conclusory and does not constitute a detailed and credible explanation of the delay. 17. Here, on or about February 9th, 2023, Plaintiff served Defendant. See NYSCEF Docket No. 6. Thereafter, on or about May 19th, 2023, Plaintiff served Defendant with an additional notice pursuant to CPLR § 3215(g). See NYSCEF Docket No. 7. 18. As such, Plaintiff’s affidavit is prima facie valid, and Defendant has the burden of rebutting the presumption of proper service through detailed and specific facts. see American Home Mtge. Servicing, Inc. v. Gbede, 127 A.D.3d 1004, 1005, 5 N.Y.S.3d 879; Velez v. Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84; Edwards, Angell, Palmer & Dodge, LLP v. Gerschman, 116 A.D.3d 824, 825, 984 N.Y.S.2d 392). 5 5 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 19. In response, Defendant admits receiving the Summons and Complaint on February 9th, 2023. See NYSCEF Docket No. 19. Afterwards, Defendant’s representative discusses vague, nondescript “procedures” that were inadvertently non followed by Defendant, and then states in conclusory fashion that the Pleading was sent to outsidre counsel due to an “administrative error” and that outside counsel did not get retained until several months later. See NYSCEF Docket No. 19 (¶¶3-5). 20. In essence, Defendant’s failure to file a verified answer is an unsubstantiated, conclusory claim of law office failure, which the 2nd Department has roundly rejected. See Lt. Luke’s Roosevelt Hosp. v. Blue Ridge Ins. Co, 21 A.D.3d 946 (2d Dep’t 2005)(Defense counsel’s excuse of law office failure was conclusory and devoid of any detailed factual allegations); Vardaros v. Zapas, 105 A.D.3d 1037 (2d Dep’t 2013); Morris v. Metropolitan Transp. Authority, 191 A.D.2d 682 (2d Dep’t 1993)(Allegation of law office failure did not warrant granting defendants' motion to vacate prior order striking affirmative defense of statute of limitations; defendants' excuse was limited to self-serving and unsubstantiated allegations of defendants' prior counsel that upon receipt of plaintiffs' motion papers, he spoke by telephone with unidentified employee of office of county clerk, who advised him that search of records of that office failed to reveal existence of plaintiffs' motion on any calendar). 21. Consequently, Defendant’s admission of timely service and bare denial of service, in and of itself, is insufficient to rebut the prima facie proof of proper service established by the process server’s affidavit. See, e.g., Matter of Romero v. Ramirez, 100 A.D.3d 909 (2d Dep’t 2012). 6 6 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 B. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW AS THE STATUTE OF LIMITATIONS FOR THE MORTGAGE EXPIRED ON JUNE 4th, 2014. 22. Since Defendant failed to establish lack of actual notice, this court need not evaluate whether Defendant has a potentially meritorious defense to this action. See e.g. Andrews v Wartburg Receiver, LLC, 203 AD3d 1000 [2d Dep’t 2022]. 23. However, assuming, arguendo, this court determines Defendant proffered a reasonable excuse, Defendant does not have a meritorious defense to this action, and allowing Defendant to interpose an Answer would be a waste of judicial resources. i. CPLR § 213 and RPAPL Article 15 Legal Standard. 24. When litigants fail to diligently pursue their rights, they negate fundamental societal objectives of order and commercial predictability. The New York Court of Appeals has recently emphasized the importance of the application of statutes of limitation in the application of New York law, “our statutes of limitation serve the same objectives of finality, certainty and predictability that New York's contract law endorses. Statutes of limitation not only save litigants from defending stale claims, but also express a societal interest or public policy of giving repose to human affairs.” Bank of N.Y. v Silverberg, 86 AD3d 274 [2d Dept 2011] [internal citations and quotes omitted]; ACE Sec. Corp. v. DB Structured Prods., Inc., 25 N.Y.3d 581 [2015]). 25. The Statute of Limitations for mortgage foreclosure in New York is governed by CPLR § 213 (4) which states, the following actions must be commenced within six years: “an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein.” CPLR § 213 (4). 7 7 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 26. Thus, it is well settled that an action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding the commencement of the action. (see CPLR § 213 (4); Wells Fargo Bank, N.A. v. Burke, 94 AD3d 980, 982 [2d Dep’t 2012]). “[W]ith respect to a mortgage payable in installments, there are separate causes of action for each installment accrued, and the Statute of Limitations [begins] to run, on the date each installment [becomes] due.” (Wells Fargo Bank, N.A. v. Cohen, 80 AD3d 753, 754 [2d Dep’t 2011] [internal quotations omitted]). “However, even 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” (Burke, 94 AD3d at 982). “The filing of the summons and complaint and lis pendens in an action accelerate[s] the note and mortgage.” (Clayton Nat’l, Fnc. v. Guidi, 307 AD2d 982, 982 [2d Dep’t 2003]). “Once the mortgage debt [is] accelerated, the borrowers’ right and obligation to make monthly installments cease[s] and all sums bec[ome] immediately due and payable.” (Fed. Nat’l Mtge. Ass’n v. Mebane, 208 AD2d 892,894 [2d Dep’t 1994]). 27. In proving its prima facie entitlement to judgment as a matter of law declaring that the subject mortgage is invalid pursuant to RPAPL 1501(4), the Plaintiff property owner must: (1) establish that a foreclosure action commenced by the defendant mortgagee was dismissed; See JBR Constr. Corp. v Staples, 71 AD3d 952, 953 (2d Dept 2010); See also Staples v Jeff Hunt Devs., Inc., 56 AD3d 459, 460 (2d Dept 2008); and (2) that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations. See CPLR 213(4); LePore v Shaheen, 32 AD3d 1330, 1331 (4th Dept 2006); Corrado v Petrone, 139 AD2d 483 (2d Dept 1988); see also Plaia v Safonte, 45 AD3d 747, 748 (2d Dept 2007); Zinker v Makler, 298 AD2d 516, 517 (2d Dept 2002). 8 8 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 28. In opposition, the defendant(s) must raise a triable issue of fact as to whether the statute of limitations was tolled or revived. See Staples, 71 AD3d at 953; see also Alvarez v Prospect Hosp., 68 NY2d 320 (1986); Rack v Rushefsky, 5 AD3d 753, 753-54 (2d Dept 2004). ii. New York State Law Regarding Acceleration of a Mortgage Prior to Engel. 29. In New York, it is well-settled that “an action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding the commencement of the action.” Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982 (2d Dep’t 2012) (citing N.Y. C.P.L.R. § 213(4)). Specifically, CPLR section 213(4), provides in relevant part 30. The following actions must be commenced within six years: … 4. an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein. N.Y. C.P.L.R. § 213(4). 31. “With respect to a mortgage payable in installments, separate causes of action accrue[] for each installment that is not paid, and the statute of limitations begins to run, on the date each installment becomes due.” Burke, 94 A.D.3d at 982 (citing Wells Fargo Bank, N.A. v. Cohen, 80 A.D.3d 753, 754 (2d Dep’t 2011), Loiacono v. Goldberg, 240 A.D.2d 476, 477 (2d Dep’t 1997), Pagano v. Smith, 201 A.D.2d 632, 633 (2d Dep’t 1994)). Crucially in this case, “‘even 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.’” Burke, 94 A.D.3d at 982 (citing EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605 (2d Dep’t 2001)). 32. There are three ways a mortgage can be accelerated: 9 9 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 One way is in the form of an acceleration notice transmitted to the borrower by the creditor or the creditor’s servicer. To be effective, the acceleration notice to the borrower must be clear and unequivocal. A second form of acceleration, which is self-executing, is the obligation of certain borrowers to make a balloon payment under the terms of the note at the end of the pay-back period. A third form of acceleration exists when a creditor commences a foreclosure upon a note and mortgage and seeks, in the complaint, payment of the full balance due. Milone v. U.S. Bank Natl. Assn., 164 A.D.3d 145, 152 (2d Dep’t 2018) (citations omitted) (emphasis added). 33. As this Court has recognized, “‘[a] lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action.’” Cortes- Goolcharran v. Rosicki, Rosicki & Associates, P.C., 2018 WL 3748154, at *3 (E.D.N.Y. August 7, 2018) (citing NMNT Realty Corp. v. Knoxville 2012 Tr., 151 A.D.3d 1068, 1069–70, 58 N.Y.S.3d 118, 120 (2d Dep’t 2017)); See also U.S. Bank Tr., N.A. v. Aorta, 167 A.D.3d 807, 808, 89 N.Y.S.3d 717, 719 (2d Dep’t 2018). 34. “The filing of the summons and complaint and lis pendens in an action . . . accelerate[s] the note and mortgage.” Clayton Nat’l Fnc. v Guidi, 307 AD2d 982 (2d Dept 2003) (citations omitted). “Once the mortgage debt [is] accelerated, the borrowers’ rights and obligation to make monthly installments cease[s] and all sums bec[ome] immediately due and payable.” Fed. Nat’l Mtge. Ass’n v Mebane, 208 AD2d 892, 894 (2d Dept 1994). Moreover, execution of a “stipulation of discontinuance [does] not, by itself, constitute an affirmative act to revoke its election to accelerate” if the stipulation is silent on the issue of the election to accelerate. Bank of New York Mellon v. Craig, 169 A.D.3d 627, 93 N.Y.S.3d 425, 427–28 (2d 10 10 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 Dep’t Feb. 6, 2019). Furthermore, an order of discontinuance, in itself, is insufficient to evidence an affirmative act to revoke the election to accelerate the mortgage debt. Aorta, 167 A.D.3d at 809. iii. Engel Holds that Voluntary Discontinuance Constitutes a Revocation of Acceleration. 35. In 2021, the New York Court of Appeals reversed decades of lower court decisions and determined, inter alia, that the voluntary discontinuance of a foreclosure action is sufficient to serve as an affirmative act of revocation and restart the statute of limitations. Freedom Mortgage Corp. v. Engel, 169 N.E.3d 912, 917 (2021). Specifically, the Court held that the voluntary discontinuance “constitutes an affirmative act of revocation of that acceleration as a matter of law, absent an express, contemporaneous statement to the contrary by the noteholder.” Id. at 926. The Court of Appeals reasoned that such a clear rule purportedly benefits mortgagors by “allowing borrowers to take advantage of the opportunity afforded by the de- acceleration— reinstatement of the right to pay arrears and make installment payments, eliminating the obligation to immediately pay the entire outstanding principal amount in order to avoid losing their homes.” Id. at 926-927. 36. However, whether intended or not, in creating a purported “bright line rule,” the Court of Appeals breathed life into countless ancient foreclosure actions, such as the 2008 Foreclosure that is part of the instant litigation, and essentially sanctioned the years of neglect by mortgage lenders in prosecuting these cases by rendering the statute of limitations de facto meaningless. 11 11 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 iv. Foreclosure Abuse Prevention Act overrules Engel. 37. In December of 2022, the State Legislature enacted the Foreclosure Abuse Prevention Act (“FAPA”), which was specifically passed to overrule Freedom Mortgage Corp. v. Engel, 169 N.E.3d 912, 917 (2021) and was passed in direct response to long languishing foreclosure actions in New York as well as curtail the ever-growing practice of the court system sanctioning mortgage companies, such as Defendant, circumventing the statute of limitations. Attached hereto as Exhibits A-B. 38. FAPA’s amendments to CPLR § 3217 and CPLR § 213(4) categorically resolve this action in favor of Plaintiff as discussed below. The Legislative intent behind FAPA is emphatically clear- to overrule Engel- as discussed in pertinent part in FAPA’s Sponsor Memo as follows: There is an urgent need to pass this bill to overrule the Court of Appeals' recent decision in Freedom Mtge. Corp. v Engel (37 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 clear detriment of New York home-owners. No other civil plaintiff in this state is extended such unilateral and unfettered powers. 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 of limitations not only applies equally to all, but is impervious to unilateral manipulation. In doing so, the bill aims to further clarify and reaffirm the legislative intent of a wide spectrum of laws 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 12 12 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 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 (1979)). 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 Exhibit B. 39. As relevant hereto, Section 8 of FAPA amended CPLR §3217 in pertinent part as follows: Effect of discontinuance upon certain instruments. In any action on an instrument described under subdivision four of section two hundred thirteen of this chapter, the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute. See Exhibit A (emphasis added). 40. Once again, the Legislative intent behind FAPA seeks to overrule judicial overreach with respect to extreme deference toward mortgage lenders and the banking industry regarding the statute of limitations, as discussed in pertinent part in the Act’s Sponsor Memo as follows: CPLR 3217 (e) is expressly intended to overrule Engel. The new subdivision clarifies that unless made in strict compliance with the General Obligations Law, the mere voluntary dismissal or discontinuance of a foreclosure action, whether by motion, order, stipulation, or notice, cannot waive, postpone, cancel, toll, extend, revive, or reset the statute of limitations period, nor the expiration thereof (e.g., Petito, 85 NY2d at 8-9). The phrase "unless expressly prescribed by statute" is in recognition of the fact that existing New York statutory law allows parties a strictly defined means of extending a statute of limitations after a claim predicated on non- 13 13 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 payment of a mortgage debt has accrued (Gen. Oblig. Law 17- 105). See Exhibit B. 41. Lastly, FAPA provides that same “shall take effect immediately and shall apply to all actions commenced on an instrument described under [CPLR § 213 (4)] in which a final judgment of foreclosure and sale has not been enforced” (FAPA, § 10), and same was signed into law on December 30, 2022. See Exhibits A-B. 42. Here, FAPA is patently applicable, as a final judgment of foreclosure and sale has not and will not be enforced. 1. Defendant cannot demonstrate a meritorious defense to this action because the 2008 Foreclosure Action accelerated the Subject Mortgage, the discontinuance of the 2008 Foreclosure Action did no revoke acceleration, and as such, the Subject Mortgage is past the statute of limitations as of June 4th, 2014. thereby rendering the Subject Mortgage time barred as a matter of law. 43. Here, it is undisputed that on June 3rd, 2008, Defendant commenced the 2008 Foreclosure Action as against non-party and mortgagor Kazi Zakir regarding the Subject Mortgage (NYSCEF Docket No. 2) and Subject Property. See NYSCEF Docket No. 3. By the language of the Summons and Complaint, Defendant duly elected to accelerate the Subject Mortgage and made all amounts due. Id. Thereafter the 2008 Foreclosure Action was voluntarily discontinued by Defendant. See NYSCEF Docket No. 4. 44. As a result, Defendant had until June 4th , 2014 to commence another foreclosure action. see Nationstar Mortgage LLC v. Islam, 158 AD3d 553 [1st Dep’t 2018]). 45. Under the Section 4(h) of FAPA“…no party may, in form or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to 14 14 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 commence an action and to interpose the claim, unless expressly prescribed by statute.” See Exhibit A (emphasis added). 46. Moreover, Section 10 of the Act states in pertinent part that “…[t]his act shall take effect immediately and shall apply to all actions commenced on an instrument described under subdivision four of section two hundred thirteen of the civil practice law and rules in which a final judgment of foreclosure and sale has not been enforced.” Id. (emphasis added). 47. Consequently, Defendant is time barred from commencing a foreclosure action, and the Subject Mortgage should be rendered extinguished as a matter of law pursuant to R.P.A.P.L. Article 15. 48. Therefore, Defendant’s cross motion should be denied in its’ entirety and Plaintiff’s motion seeking a default judgment as against Defendant should be granted in its’ entirety. 49. No prior application for the relief requested herein has been made of any Court. 15 15 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 WHEREFORE, it is therefore respectfully requested that the Court issue an order: 1. Denying Defendant’s cross motion in its’ entirety; and 2. Granting Plaintiff’s motion; and 3. For such further relief as to this Court seems just, proper, and equitable. Dated: November 3rd, 2023 Kew Gardens, New York Yours, etc., SHIRYAK, BOWMAN, ANDERSON GILL & KADOCHNIKOV, LLP _________________________________ By: Matthew J. Routh, Esq. Attorneys for Plaintiff 16 16 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 ATTORNEY CERTIFICATION I, Matthew J. Routh, Esq., hereby certify, under penalty of perjury, and as an officer of the court, that to the best of my knowledge, information and belief, formed after an inquiry reasonably under the circumstances, the presentation of the papers or the contentions herein are not frivolous as defined in 22 NYCRR Section 130-1.1(c). Dated: November 3rd, 2023 Kew Gardens, New York ___________________________ By: Matthew J. Routh, Esq. 17 17 of 18 FILED: QUEENS COUNTY CLERK 11/03/2023 07:26 PM INDEX NO. 700848/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/03/2023 18 18 of 18