By Rivera, J.P.; Lasalle, Barros, Iannacci, JJ. U.S. BANK NATIONAL ASSOCIATION, ETC., res, v. BRIAN MCCAFFERY, ET AL., app, ET AL., def — (Ind. No. 11997/09) Young Law Group, PLLC, Bohemia, NY (Ivan E. Young of counsel), for appellants. Duane Morris LLP, New York, NY (Brett L. Messinger of counsel), for respondent. In an action to foreclose a mortgage, the defendants Brian McCaffery and Cindy McCaffery appeal from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 30, 2016. The order, insofar as appealed from, denied those branches of those defendants’ motion which were for leave to renew and reargue their opposition to that branch of the plaintiff’s prior motion which was, in effect, for a declaration that the plaintiff’s acceleration of the mortgage debt was revoked and rescinded, which was granted in an order of the same court (Francesca E. Connolly, J.) dated November 10, 2014, and to vacate so much of that order as declared that the plaintiff’s acceleration of the mortgage debt was revoked and rescinded. ORDERED that the appeal from so much of the order dated September 30, 2016, as denied that branch of the defendants’ motion which was for leave to reargue is dismissed; and it is further, ORDERED that the order dated September 30, 2016, is reversed insofar as reviewed, on the law, that branch of the motion of the defendants Brian McCaffery and Cindy McCaffery which was to vacate so much of the order dated November 10, 2014, as declared that the plaintiff’s acceleration of the mortgage debt was revoked and rescinded is granted, and that branch of the motion of the defendants Brian McCaffery and Cindy McCaffery which was for leave to renew their opposition to that branch of the plaintiff’s prior motion which was, in effect, for that declaration is denied as academic; and it is further, ORDERED that one bill of costs is awarded to the defendants Brian McCaffery and Cindy McCaffery. The plaintiff commenced this action against the defendants Brian McCaffery and Cindy McCaffery (hereinafter together the defendants) and others to foreclose a mortgage encumbering certain property in Mohegan Lake. In June 2014, the plaintiff moved, inter alia, to discontinue the action and, in effect, for a declaration that the acceleration of the mortgage debt was revoked and rescinded. The defendants opposed the motion. By order dated November 10, 2014, the Supreme Court, inter alia, granted the plaintiff’s motion to discontinue the action without prejudice, and declared that the plaintiff’s acceleration of the mortgage debt was revoked and rescinded. Thereafter, the defendants moved, inter alia, for leave to renew and reargue their opposition to the plaintiff’s motion and to vacate so much of the order dated November 10, 2014, as declared that the plaintiff’s acceleration of the mortgage debt was revoked and rescinded. By order dated September 30, 2016, the court denied the defendants’ motion in its entirety. On appeal, the defendants contend, inter alia, that the court should have vacated the provision in the order dated November 10, 2014, declaring that the plaintiff’s acceleration of the mortgage debt was revoked and rescinded. The appeal from so much of the order dated September 30, 2016, as denied that branch of the defendants’ motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument (see Gentry v. Mean, 166 AD3d 583; Viola v. Blanco, 1 AD3d 506, 507). “The courts of New York do not issue advisory opinions for the fundamental reason that in this State ‘[t]he giving of such opinions is not the exercise of the judicial function’” (Cuomo v. Long Is. Light Co., 71 NY2d 349, 354, quoting Self-Insurer’s Assn. v. State Indus. Commn., 224 NY 13, 16; see Simon v. Nortrax N.E., LLC, 44 AD3d 1027). “Thus, courts may not issue judicial decisions which ‘can have no immediate effect and may never resolve anything’” (Simon v. Nortrax N.E., LLC, 44 AD3d at 1027, quoting New York Pub. Interest Research Group v. Carey, 42 NY2d 527, 531). Here, that branch of the plaintiff’s prior motion which was for a declaration that the acceleration of the mortgage debt was revoked and rescinded constituted, in essence, an impermissible request for an advisory opinion (see Board of Educ. of Palmyra-Macedon Cent. Sch. Dist. v. Flower City Glass Co., Inc., 160 AD3d 1497, 1498; Hirschfeld v. Hogan, 60 AD3d 728, 729; Simon v. Nortrax N.E., LLC, 44 AD3d at 1027). Where, as here, “an action is discontinued, it is as if it had never been; everything done in the action is annulled and all prior orders in the case are nullified” (Newman v. Newman, 245 AD2d 353, 354; see Brown v. Cleveland Trust Co., 233 NY 399, 406; Loeb v. Willis, 100 NY 231, 235; Harris v. Ward Greenberg Heller & Reidy LLP, 151 AD3d 1808, 1810; Stone Mountain Holdings, LLC v. Spitzer, 119 AD3d 548, 549). Upon discontinuance of the action, a judicial declaration on the issue of whether the plaintiff elected to revoke its acceleration would be merely advisory inasmuch as there was no active case in which such declaration could have an immediate effect. Indeed, by seeking voluntary discontinuance of the action, the plaintiff, in effect, waived any right to seek any further judicial relief in the action (see e.g. Onewest Bank, FSB v. McKay, 172 AD3d 887, 888). Secondly, a revocation of a plaintiff’s election to accelerate a mortgage debt does not automatically occur upon a discontinuance of a mortgage foreclosure action. In this Department, a lender’s mere act of voluntarily discontinuing an action does not constitute, in and of itself, an affirmative act revoking an earlier acceleration of the debt (see Christiana Trust v. Barua, 184 AD3d 140; Bank of NY Mellon v. Yacoob, 182 AD3d 566; HSBC Bank, N.A. v. Vaswani, 174 AD3d 514, 515). This is so because “the full balance of a mortgage debt cannot be sought without an acceleration, whereas the voluntary discontinuance of a foreclosure action may be occasioned for any number of different reasons, including those that have nothing to do with an intent to revoke the acceleration” (Christiana Trust v. Barua, 184 AD3d at 147. “[T]he [plaintiff's] right to exercise [or revoke] an acceleration independently arises from the provisions of the note between the parties, and not from the existence of the potential…remedies of the court” (id. at 149). Thus, it is the plaintiff who has authority to revoke its election to accelerate the mortgage debt under the terms of a note, and not the court. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was to vacate so much of the order dated November 10, 2014, as declared that the plaintiff’s acceleration of the mortgage debt was revoked and rescinded, on the ground that the plaintiff’s request for such declaration constituted an impermissible request for an advisory opinion In light of the foregoing, we need not reach the remaining contentions. RIVERA, J.P., LASALLE, BARROS and IANNACCI, JJ., concur.
By Chambers, J.P.; Austin, Miller, Christopher, JJ. SHAMEEM CHOWDHURY, app, v. ROBERT THOMAS, res — (Ind. No. 503425/16) Felton & Associates, Brooklyn, NY (Regina Felton of counsel), for appellant. Cuddy & Feder LLP, White Plains, NY (Joshua E. Kimerling and Troy D. Lippp of counsel), for respondent. In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated November 28, 2016, and (2) an amended order of the same court dated December 1, 2016. The order and the amended order, insofar as appealed from, granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the amended complaint. ORDERED that the appeal from the order dated November 28, 2016, is dismissed, as that order was superseded by the amended order dated December 1, 2016; and it is further, ORDERED that the amended order dated December 1, 2016, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the defendant. The plaintiff alleges that in 1996, he entered into a handwritten contract with Lisence Realty Corp. to purchase certain real property in Brooklyn for $695,000, with a down payment of $3,000. The 1996 contract was never recorded with the City Register Office and, in fact, contained a clause stating that it would become void if recorded. Nearly 20 years later, on February 29, 2016, the plaintiff contacted the defendant, who obtained title to the property in 2015 pursuant to an order of this Court (see Thomas v. Gray, 121 AD3d 1091), seeking to enforce the terms of the 1996 contract. The plaintiff thereafter commenced this action against the defendant for specific performance of the 1996 contract, and for related relief. The defendant moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint. The Supreme Court granted that branch of the motion, and the plaintiff appeals. “Ordinarily, the law will allow the vendor and vendee a reasonable time to perform their respective obligations, regardless of whether they specify a particular date for the closing of title” (Grace v. Nappa, 46 NY2d 560, 565). Moreover, “abandonment of a contract need not be express, but may be inferred from the conduct of the parties and the attendant circumstances” (Savitsky v. Sukenik, 240 AD2d 557, 559). Here, even accepting as true the facts alleged in the amended complaint (see Leon v. Martinez, 84 NY2d 83, 87-88) — including that the 1996 contract was an enforceable, executory contract for the purchase and sale of the subject property when the contract was entered into — the plaintiff’s failure to enforce the contract for a period of nearly 20 years amounts to an abandonment of the contract as a matter of law (see Savitsky v. Sukenik, 240 AD2d at 559). The plaintiff’s remaining contentions are without merit. Accordingly, we agree with the Supreme Court’s determination granting that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the amended complaint. CHAMBERS, J.P., AUSTIN, MILLER and CHRISTOPHER, JJ., concur.
