The following pages were submitted for the Court’s consideration on February 6, 2020: Notice of Motion 1 Affirmation in Support 2 Affidavit in Support 3 Exhibits Attached 4 Notice of Cross-Motion 5 Affirmation in Support 6 Exhibits Attached 7 Affirmation in Opposition to Cross Motion and in Further Support of Motion 8 Exhibits Attached 9 Affirmation in Reply 10 Exhibits Attached 11 DECISION AND ORDER In this foreclosure action, Plaintiff moves (Seq. 003) summary judgment in its favor, and for appointment of a referee to compute the amount due to it. Defendant ABN Home Improvements (ABN) cross-moves (Seq. 004) for an order granting renewal of its prior motion which sought dismissal of this action by reason of the expiration of the Statute of Limitations. Said prior motion resulted in a decision and order of this Court dated July 16, 2018 denying the motion. The decision essentially concluded that Plaintiff’s discontinuance of a prior foreclosure action, based on the same mortgage and note, operated to “decelerate” the loan and stop the running of the Statute of Limitations. After the filing of the motion, but before this Court’s July 16, 2018 decision, the Appellate Division, Second Department issued its opinion in the case of Freedom Mortgage Corp. v. Engel, 163 AD 3d 361, on July 11, 2018. In that opinion, the Appellate Division concluded that: “…. plaintiff’s execution of the…. stipulation (of discontinuance) did not, in itself, constitute an affirmative act to revoke its election to accelerate since, inter alia, the stipulation was silent on the issue of the revocation of the election to accelerate1, and did not otherwise indicate that the Plaintiff would accept installment payments from the defendant.” Thus, if this motion to renew is properly before the Court, the Freedom Mortgage case commands a different result. 1. The Motion to Renew CPLR 2221(e) states in pertinent part that: A motion for leave to renew: 1. …. shall be identified specifically as such; 2. …. shall demonstrate that there has been a change in the law that would change the prior determination…. ABN’s motion is specifically denominated as such and as indicated, demonstrates a change in the law that changes the prior determination. (see, e.g. Deutche Bank Nat’l Trust Co. v. Dormer, 60 Misc 3d 550, 552). It is noted that CPLR 2221 (e)(3) does not require movant to show a reasonable justification for a previous failure to demonstrate a change in the law; such standard applies only to a renewal motion based on new facts. (Connors, McKinney’s Practice Commentaries, CPLR Book 7B, C2221:9A). As a corollary, and contrary to Plaintiff’s position, no affidavit by a person with knowledge of facts was necessary in support of ABN’s motion, as it raises a question purely of law. Contrary to Plaintiff’s assertion, there is no time period for making a motion to renew prescribed by CPLR 2221 (e), save for some limitations set forth in case law (Connors, McKinney’s Practice Commentaries, supra). Generally, the limitations founded in the case law require any renewal motion to be made while the matter sub judice is still pending (see, Dinallo v. DAL Electric, 60 AD 3d 620, 621 (2d Dept.); see also, Connors, supra, Supplementary Practice Commentaries, C2221: 9A (2018)). A foreclosure action terminates upon entry of the judgment of foreclosure and sale (cf. State Savings F.A. v. Parc Vendome Associates, Ltd., 223 AD 2d 464); thus, this action is still pending. 2. Standing Parties who are presently in title to the real property are necessary and indispensable parties to a foreclosure proceeding (RPAPL §1311 (1)). Plaintiff takes the position that, as a stranger to the note and mortgage, ABN has no standing to raise Statute of Limitations defenses, which, if successful, would defeat foreclosure. ABN, as title owner, clearly has standing to do so. (Wellington v. Financial Freedom Acquisition, LLC. ex rel. Structured Asset Securities Corp. Reverse Mortgage Loan Trust 1999 — RMI, 132 AD 3d 506; see also, Silverberg v. Bank of New York Mellon, 165 AD 3d 1193 (2d Dept.)).2 Here, as in Silverberg, Plaintiff’s reliance on contract law, i.e., that a person must be a party to the note or mortgage to have standing, is misplaced. It is ABN, as title owner in fee, that has a protectable choate interest in the property that would be adversely affected by a foreclosure sale. In the view of the Court, if the Statute of Limitations has expired, pursuant to Freedom Mortgage, it has expired, and it is irrelevant which defendant calls it to the attention of the Court. Otherwise, the result, as plaintiff would have it, is absurd — ABN is a necessary and indispensable party to this action, has a vested ownership interest in the property, but is barred from raising legitimate defenses to this foreclosure action. There is no question that ABN is not obligated under the note, but enforcement of the security, evidenced by this mortgage to which its fee interest is subject, jeopardizes his rights in the subject property. Co-defendant Haq has little incentive to protect that interest, having conveyed same to ABN in 2012. 3. Conclusion Accordingly, defendant ABN’s motion to renew is granted, and upon renewal, its original motion (Seq. 001) to dismiss on the ground of expiration of the Statute of Limitations, (CPLR 3211 (a) (5)) is granted. That portion of this Court’s July 16, 2018 decision denying said relief is recalled and vacated. The Plaintiff’s motion (Seq. 003) to summary judgment and appointment of a referee to compute is denied as moot. This action is hereby DISMISSED. Dated: February 18, 2020
