Motion by defendants Walter Heitner and Gai Heitner for an order pursuant to CPLR 3211(a)(5) dismissing this foreclosure action as time barred is granted. Cross-motion by plaintiff for an order pursuant to CPLR 306-b and CPLR 2004 extending plaintiffs time to serve defendant through April 29, 2019, nunc pro tunc, is denied. This is an action to foreclose a mortgage on the premises known as 1611 Roland Avenue, Wantagh, New York. On December 31, 2009, plaintiff filed the first foreclosure action. In paragraph 5 of the complaint, plaintiff alleged that defendants failed to pay the monthly installment due on April 1, 2009. The Heitners moved to dismiss that action pursuant to CPLR 3211(a)(3) based on “lack of standing.” By Order dated March 17, 2010, the court denied the motion. (See Defendants’ Exh. D). On or about April 12, 2010, the Heitners served an answer. Thereafter, the Heitners moved by Order to Show Cause to dismiss the first foreclosure action based on, inter alia, plaintiff’s failure to comply with RPAPL §1304. The court denied the Heitners’ motion in an Order entered on March 31, 2015 (the “March 2015 Order”). (See Defendant’s Exh. F). The Heitners appealed the March 2015 Order. (See Defendants’ Exh. G). The Heitners also moved by Order to Show Cause to reargue the March 2015 Order. The court denied the Heitners’ motion to reargue in an Order entered on September 2015. (See Defendants’ Exh. H). While the appeal was pending, plaintiff moved for summary judgment and related relief. The court granted plaintiff’s motion in an Order entered on April 10, 2018. (See Defendants’ Exh. I). On October 24, 2018, the Appellate Division reversed the March 2015 Order and dismissed the action because plaintiff failed to establish that it complied with RPAPL §1304. (See Defendant’s Exh. J; Deutsche Bank National Trust Company v. Heitner, 165 AD3d 1038). Plaintiff commenced this action on March 21, 2019. (See Defendant’s Exh. K). Initially, this court notes that plaintiff concedes the following: (a) “there existed a prior foreclosure action from 2009 which was dismissed in the Appellate Division on October 24, 2018; (b) although the statute of limitations has long since passed (i.e., six years from the commencement of the 2009 action) pursuant to CPLR 205, the plaintiff was permitted to recommence by April 24, 2019 (six months from October 24, 2018); (c) plaintiff filed the present action on March 21, 2019, but served [the summons and complaint] via nail and mail and sent the additional mailing on April 19, 2019; and (d) because CPLR 205 requires the additional action to be filed and ‘served’ prior to the six month grace period (i.e., April 24, 2019) and because the nail and mail service was not complete for another ten days after the additional mailing which occurred April 19, 2019 pursuant to CPLR 308(4), service was allegedly not effectuated until April 29, 2019, a mere five days after the expiration of the six months grace period under CPLR 205″ (Ryan D. Mitola’s Affirmation in Support of Cross-Motion and in Opposition to Defendant’s Motion to Dismiss, 5[a]-e). CPLR Section 205(a) provides that: If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain a personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff…may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. The prior action will be considered “terminated” within the meaning of CPLR 205 on the date of the decision determining an appeal on the merits (Lehman Brothers, Inc. v. Hughes Hubbard & Reed, LLP, 92 NY2d 1014, 1046). Here, the first action was terminated on October 24, 2018. Since plaintiff alleges service by nail and mail pursuant to CPLR 308(4), and the affidavits of service were not filed until April 19, 2019, service was not complete until ten days after these filings on April 29, 2019. (See Defendants’ Exhs. L, M, N & O). Hence, service was not complete and jurisdiction was not acquired over the Heitners until five days after the six-month period expired on April 24, 2019 (Roth v. Syracuse Hous. Auth., 2002 WL 31962630 [Onondaga County 2002]). Accordingly, defendants’ motion to dismiss this action as barred by the applicable statute of limitations is granted and plaintiff’s cross-motion is denied. Dated: January 16, 2020
