Deutsche Bank Natl. Trust Co. v. Merrill

Deutsche Bank Natl. Trust Co. v Merrill 2026 NY Slip Op 05933 October 14, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Deutsche Bank National Trust Company, etc., appellant, v Pamela Merrill, respondent, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 14, 2026 2025-01447, (Index No. 711920/23) Lara J. Genovesi, J.P. William G. Ford Helen Voutsinas Donna-Marie E. Golia, JJ. McCarter & English, LLP, New York, NY (Adam M. Swanson and Jessie D. Bonaros of counsel), for appellant. Mobilization for Justice, Inc., New York, NY (Tiffany Liston and Liana Goff of counsel), for respondent. [*1] DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Tracy Catapano-Fox, J.), entered December 30, 2024. The order, insofar as appealed from, denied the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Pamela Merrill and for an order of reference, and granted those branches of that defendant's cross-motion which were for summary judgment dismissing the complaint insofar as asserted against her and on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. ORDERED that the order is affirmed insofar as appealed from, with costs. On March 30, 2005, the defendant Pamela Merrill executed a note in the sum of $164,800 in favor of GreenPoint Mortgage Funding, Inc. The note was secured by a mortgage on certain real property located in Laurelton. Merrill allegedly defaulted on her payment obligations under the note in July 2009. By assignment of mortgage dated October 29, 2009, the mortgage was assigned to the plaintiff. On November 19, 2009, the plaintiff commenced an action against Merrill, among others, to foreclose the mortgage (hereinafter the 2009 action). The plaintiff elected in the complaint "to call due the entire amount secured by the mortgage." Merrill interposed an answer to the complaint. In November 2015, the plaintiff moved to discontinue the 2009 action and to cancel the notice of pendency. In an order dated March 23, 2016, and entered April 11, 2016, the Supreme Court granted the plaintiff's motion. On April 5, 2016, the plaintiff commenced a second action to foreclose the mortgage against Merrill, among others (hereinafter the 2016 action). In an order dated January 6, 2023, the Supreme Court, inter alia, directed dismissal of the complaint in the 2016 action for failure to comply with RPAPL 1304. On June 8, 2023, the plaintiff commenced this action to foreclose the mortgage [*2]against Merrill, among others. Merrill interposed an answer in which she asserted, among other things, an affirmative defense alleging that the action was barred by the statute of limitations and a counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against Merrill and for an order of reference. Merrill cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against her as time-barred and on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage in light of the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022]). In an order entered December 30, 2024, the Supreme Court, inter alia, denied the plaintiff's motion and granted those branches of Merrill's cross-motion which were for summary judgment dismissing the complaint insofar as asserted against her and on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. The plaintiff appeals. "An action to foreclose a mortgage is governed by a six-year statute of limitations" (U.S. Bank N.A. v Santos, 218 AD3d 827, 828; see CPLR 213[4]; Lubonty v U.S. Bank N.A., 34 NY3d 250, 261; U.S. Bank N.A. v Singh, 247 AD3d 816, 818; FV-1, Inc. v Palaguachi, 234 AD3d 818, 820). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt" (Bank of N.Y. Mellon v Mor, 201 AD3d 691, 694; see U.S. Bank N.A. v Singh, 247 AD3d at 818; U.S. Bank Trust, N.A. v Boreshesky, 241 AD3d 1385, 1386; Citimortgage, Inc. v Gunn, 234 AD3d 922). "The entire mortgage debt will be deemed to have been accelerated by, as relevant here, the commencement of a mortgage foreclosure action in which the complaint seeks payment of the full outstanding loan balance" (U.S. Bank N.A. v Connor, 204 AD3d 861, 863; see U.S. Bank N.A. v Singh, 247 AD3d at 818; U.S. Bank Trust, N.A. v Boreshesky, 241 AD3d at 1386-1387). CPLR 203(h), as amended by FAPA, provides, in relevant part, that once a cause of action to foreclose a mortgage has accrued, no party may, in form or effect, unilaterally revive or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the statute of limitations (see U.S. Bank N.A. v Singh, 247 AD3d at 818; U.S. Bank Trust, N.A. v Horowitz, 238 AD3d 1093; FV-1, Inc. v Palaguachi, 234 AD3d at 821). Moreover, FAPA amended CPLR 3217(e) to provide, in relevant part, that the voluntary discontinuance of a foreclosure action shall not toll, extend, revive, or reset the statute of limitations, unless expressly prescribed by statute (see U.S. Bank N.A. v Singh, 247 AD3d at 818; FV-1, Inc. v Palaguachi, 234 AD3d at 821). Pursuant to RPAPL 1501(4), a person having an estate or interest in real property subject to a mortgage may maintain an action to secure the cancellation and discharge of record of the mortgage and to adjudge the estate or interest free of it, if the applicable statute of limitations for commencing a foreclosure action has expired (see U.S. Bank N.A. v Singh, 247 AD3d at 818; U.S. Bank N.A. v Medianik, 223 AD3d 935, 938; Ditmid Holdings, LLC v JPMorgan Chase Bank, N.A., 180 AD3d 1002, 1003). Here, Merrill established, prima facie, that the six-year statute of limitations began to run in November 2009 when the plaintiff commenced the 2009 action and elected in the complaint to call due the entire amount secured by the mortgage (see U.S. Bank N.A. v Singh, 247 AD3d at 818; HSBC Bank USA, N.A. v Corrales, 224 AD3d 816, 818). Merrill further demonstrated that this action was commenced in June 2023, more than six years later (see CPLR 213[4]; U.S. Bank N.A. v Singh, 247 AD3d at 818; U.S. Bank Trust, N.A. v Boreshesky, 241 AD3d at 1388; Citimortgage, Inc. v Gunn, 234 AD3d at 923; U.S. Bank N.A. v Doura, 204 AD3d 721, 723). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, applying FAPA, its voluntary discontinuance of the 2009 action did not revive or reset the statute of limitations (see CPLR 203[h]; 3217[e]; IPA Asset Mgt., LLC v HSBC Bank USA, N.A., 234 AD3d 948, 950; Wells Fargo Bank, N.A. v Edwards, 231 AD3d 1189, 1193). Moreover, since the 2016 action was untimely commenced, the plaintiff's contention that it could avail itself of the savings provision contained in CPLR 205-a to render this action timely is without merit. Furthermore, there is no merit to the plaintiff's contention that FAPA does not apply retroactively (see Van Dyke v U.S. Bank, N.A., 45 NY3d 461, 474; Article 13 LLC v Ponce De Leon Fed. Bank, 45 NY3d 441, 451-453). The plaintiff's arguments challenging FAPA's constitutionality are without merit (see Van Dyke v U.S. Bank, N.A., 45 NY3d 461; Article 13 LLC v Ponce De Leon Fed. Bank, 45 NY3d 441; Wilmington Sav. Fund Socy., FSB v Lozowski, 245 AD3d 986; Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065, 1069-1071). Accordingly, the Supreme Court properly granted those branches of Merrill's cross-motion which were for summary judgment dismissing the complaint insofar as asserted against her and on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, and properly denied the plaintiff's motion, among other things, for summary judgment on the complaint insofar as asserted against Merrill and for an order of reference. GENOVESI, J.P., FORD, VOUTSINAS and GOLIA, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court