Plaintiff moves (#8) for leave to renew this Court’s Decision and Order dated August 15, 2019, and Defendant 1028 Grant Avenue, LLC (1028 Grant) cross-moves (#9) to require this Court to sign the proposed Judgment submitted on September 23, 2019. The following papers were read: Notice of Motion, Affirmation 1-2 Notice of Cross-Motion, Affirmation, Exhibits (6) 3-10 Affirmation in Opposition and Reply, Exhibit 11-12 Affirmation in Reply 13 By way of background, on January 5, 2016, plaintiff commenced this action to foreclose a mortgage on real property known as 1028 Grant Avenue, Pelham, New York (Premises). The complaint alleges that defendant 1028 Grant Avenue LLC acquired title to the Premises for no reported consideration from defendant Susan Khemraj by deed, dated November 9, 2006 and recorded on January 8, 2007. Defendant Susan Khemraj executed and delivered to plaintiff a note and mortgage on the Premises on or about March 23, 2007. The complaint alleges that defendant Susan Khemraj intended to execute the mortgage (Mortgage) individually and in her capacity as managing member of defendant 1028 Grant Avenue LLC and defaulted thereunder on June 1, 2009.1 After the commencement of this action, defendants Susan Khemraj and 1028 Grant interposed an answer with various affirmative defenses, including a failure to serve a 90-day notice, and defendant 1028 Grant Avenue LLC counterclaimed for the cancellation and discharge of the Mortgage based on the statute of limitations and moved on that basis. That motion was based on the Plaintiff having commenced a prior foreclosure (Index No 27874/2009) on November 25, 2009, thereby accelerating the debt and starting the running of the statute of limitations (see Freedom Mortgage Corporation v. Engel, ___ NY3d ___, 2021 WL 623869). The record next showed that on June 14, 2012, the prior action had been dismissed by Order of Judge Scheinkman based on Plaintiff’s failure to appear as directed at a conference. The Clerk’s minutes also showed, however, an entry dated September 24, 2012 to the effect of a “Stipulation Discontinuing Action.” (cf Christiana Trust v. Barua, 184 AD3d 140, 148 [2d Dept 2020] [mere eCourts printout without the discontinuance was insufficient to establish same], rev on overruled on other grounds, Freedom Mortgage Corporation v. Engel, ___ NY3d ___, 2021 WL 623869). Although the “Stipulation” was not submitted, inasmuch as 1028 Grant did not dispute its existence, the Court accepted it, while assuming that “plaintiff successfully had moved to retore the action.” Based on the prior action having been discontinued, and not dismissed, this Court found that the prior acceleration had been revoked so that the instant action was timely. The Plaintiff also argued that RPAPL 1304 had the effect of a stay with respect to the statute of limitations. Having found the action timely based on the discontinuance, the Court did not reach this issue.2 Accordingly, on June 23, 2016, the Court denied 1028 Grant’s motion. On August 22, 2016, the parties appeared at a preliminary conference and a discovery schedule was set. On May 15, 2017, plaintiff filed a note of issue. On November 17, 2017, the Court (per Hon. Alan D. Scheinkman, J.S.C.) issued a trial scheduling order, which provided, among other things, that the trial would be conducted before Court Attorney-Referee, Albert J. Degatano, who would make a report to the Court. The trial commenced on December 18, 2017 and was continued to February 22, 2018, March 20, 2018, and May 24, 2018. On October 17, 2018, the Court Attorney-Referee filed his report (Report). In the Report, the Court Attorney-Referee noted that, at the close of testimony on May 24, 2018, plaintiff rested at which point plaintiff and defendants Susan Khemraj and 1028 Grant moved, pursuant to CPLR 4401, for judgment as a matter of law. The Court Attorney-Referee recommended that the motions of defendants Susan Khemraj and 1028 Grant be granted because plaintiff had failed to establish that it had satisfied a condition precedent to the commencement of this action; namely, compliance with the notice requirements of RPAPL §1304. On December 18, 2018, the Court (per Hon. Kathie E. Davidson, .J.S.C.), among other things, granted the motions of defendants Susan Khemraj and 1028 Grant to confirm the Report, directed that judgment be entered in favor of defendants Susan Khemraj and 1028 Grant dismissing the Complaint on that procedural ground and directed Court Attorney-Referee, Albert J. Degatano, to conduct a trial on the counterclaim of defendant 1028 Grant, discharging the Mortgage as barred by the statute of limitations and to report to the court. That trial was scheduled to commenced on September 5, 2019 when defendant 1028 Grant move for leave to renew and reargue this Court’s prior Decision and Order dated June 23, 2016 based on a change in the law. In support of its motion to reargue, defendant 1028 Grant pointed out that the Court was mistaken when it assumed that the prior foreclosure had been restored before Plaintiff purported to discontinue it. Plaintiff’s “Stipulation” or discontinuance, if it existed at all, as it could not be found, was, in any event, ineffective to do anything because the action had already been dismissed by Judge Scheinkman and not restored. As to renewal, assuming the action had been restored, the lost “Stipulation” or discontinuance could not revoke the acceleration under recent Appellate Division precedent (see Freedom Mortgage Corporation v. Engel, 163 AD3d 631, 633 [2d Dept 2018]) as it did not so provide. In a Decision and Order dated August 15, 2019 and efiled on August 16, 2019, this Court granted 1028 Grant’s motion. On September 23, 2019, 1028 Grant settled a proposed Judgment. The Judgment, however, failed to provide for the discharge of Plaintiff’s Mortgage. In any event, on February 18, 2021, the Court of Appeals reversed Freedom Mortgage Corporation v. Engel (___ NY3d ___, 2021 WL 623869), holding that any discontinuance automatically revokes the prior acceleration. Based thereon, Plaintiff now moves to renew this Court Decision and Order dated August 15, 2019 based on a further change in the law. Defendant 1028 Grant objects that the motion to renew is not timely, and that, in any event, the change in the law cannot change the result here because there was no case pending — it having been dismissed — when Plaintiff purported to discontinue it. As to the timeliness of the motion, a motion to renew has to be made within the time to appeal an Order that finally determines the action (Bray v. Gluck, 235 AD2d 72, 75 [3d Dept. 1997]). A dismissal based on the Statute of limitations finally determines an action (Matter of Huie, 20 NY2d 568 [1967]). The Decision and Order sought to be renewed was efiled on August 16, 2019. Plaintiff was therefore on notice of both the Decision and Order and the date of its entry pursuant to 22 NYCRR 202.5-b(h)(2) on that date. The time to appeal, and therefore to renew, this Decision and Order expired long ago. Assuming, arguendo, it was timely, this Court having already ruled that Plaintiff could not have discontinued the prior foreclosure because it had already been dismissed by Order of Judge Scheinkman and not restored, the change in the law with respect to the effect of a discontinuance does not affect this Court’s Decision and Order dated August 15, 2019. Finally, assuming the motion to renew was timely and the prior action had been restored before being discontinued, the result would still be the same. Why? Because in Freedom Mortgage, the issue of the Banks’ authority to unilaterally revoke the acceleration of the debt was not raised and therefore not before the Court (id.), Thus the majority simply assumed such authority existed (id.). This was particularly ironic inasmuch as the majority commenced its analysis by noting that the parties’ respective rights and obligations in foreclosure are determined, in the first instance, by the “operative contracts: the note and mortgage.” (id.) That notwithstanding, the majority never looked at the mortgage, which was before them to see what, if anything, it said about revocation of acceleration. The majority then, having assumed such authority was there, then crafted the procedure for revoking, again without reference to the mortgage, and cited as its authority Kilpatrick v. The Germania Life Insurance Company, 183 NY 163, 168 [1905], a case wherein it was said: “The election [to accelerate] once made was final and not subject to change at the option of the [mortgagee].” So, as was noted by the dissent, “Depending on whether and when we resolve that question [whether there is a contractual right to unilaterally revoke an acceleration], the rule adopted by the majority [may be] discarded in the future.” (id. Rivera, J. dissenting). In other words, it is all just dictum. Applying the foregoing, the issue of the Plaintiff’s authority to unilaterally revoke its acceleration has been raised here by the Defendants. Examining the Mortgage, the Plaintiff does not have that authority. And without that authority, a unilateral revocation that necessarily restarts the statute of limitations, violates General Obligations Law Section 17101 which requires a writing signed by the party to be charged (US Bank National Association v. Szoffer, 58 Misc 3d 1220[A][Sup Ct, Rock. Co 2017]). For all of the foregoing reasons, Plaintiff’s motion to renew is denied. 1028 Grant’s motion to compel the Court to sign the prior Judgment is denied inasmuch as it does not correspond to what has been decided. 1028 Grant is directed to submit a proposed judgment within 30 days hereof on 7 days’ notice which shall incorporate this Decision and Order including for the cancelation and discharge of Plaintiff’s Mortgage based on RPAPL 1501(4) and the statute of limitations. Dated: July 12, 2021
