Upon the foregoing papers, Defendant Patrick Brown’s motion, pursuant to CPLR §2221(e), for leave to renew Plaintiff’s motion, dated November 28, 2018, and Defendant’s cross-motion, dated January 29, 2019 to dismiss the complaint, and, upon renewal, for an Order of this Court (1) vacating the order and judgment of this Court dated June 9, 2022 confirming the referee’s report and granting a judgment of foreclosure and sale; (2) denying Plaintiff’s motion for an order of reference; (3) and granting Defendant’s cross-motion for an Order to dismiss is determined as set forth hereinafter. Background and Facts On or about April 8, 2005, Defendant executed and delivered to non-party FREMONT INVESTMENT AND LOAN a note in the amount of $332,800.00 which was secured by a mortgage on certain real property located at 1145 Irving Street, Valley Stream. New York (the “subject property”). On or about May 1, 2007, Defendant defaulted on his obligations to pay as required under the Note and Mortgage, leading Plaintiff to commence this action to foreclosure on the subject property on or about September 21, 2007. Defendant was served on or about September 26, 2007 and apparently has not formally appeared in this action with an answer. Based on Defendant’s default, Plaintiff moved and was granted an order of reference on November 20, 2008. From the Court’s record, it appears following the granting of the order of reference, no further action was taken. On or about May 9, 2014, the matter was transferred to Plaintiff’s current counsel of record, Gross Polowy, LLC. On or about May 18, 2018, Plaintiff moved to vacate the previously granted order of reference and sought a new order granting it a default judgment and order of reference. This motion, however, was withdrawn on June 12, 2018. On or about December 4, 2018, Plaintiff moved again for a default judgment and order of reference. Defendant cross-moved to dismiss the complaint. In an Order entered September 9, 2019, this Court (Adams, J.) (the “September 9 Order”) (NYSECF Doc. No. 30) granted Plaintiff’s motion for a default judgment and an order of reference. On or about June 9, 2022, Plaintiff filed a motion for a judgment of foreclosure and sale, which was granted on October 26, 2022 (Sullivan, J.) over Defendant’s opposition. Defendant appealed from that Order on or about December 19, 2022. The Instant Motion Defendant now seeks leave to renew the September 9 Order. In so doing, Defendant argues that during the pendency of this action, Plaintiff actually filed a second action with the same caption in 2012 under Nassau County Index No. 0103064/2012 (the “2012 action”). Defendant argued, in his initial cross-motion papers, that this action, filed first in time, should be dismissed as effectively abandoned, or, being subject to a “de facto discontinuance” once Plaintiff filed the 2012 action. Defendant now seeks to renew the prior motion based on the changes in law occasioned by the Foreclosure Abuse Prevention Act of 2023 (“FAPA”). Defendant argues that FAPA, when passed, essentially codified the argument contained in its motion to dismiss when in amended New York State’s Real Property Actions and Proceedings Law (“RPAPL”) to provide that: “[n]o other action shall be commenced…without leave of the court in which the former action was brought” and that, in the event another action is brought without leave from the Court, “the former action shall be deemed discontinued” (RPAPL 1301[3]). Defendant argues that this change in law warrants this Court granting it leave to renew the prior motion, and upon renewal, dismissal of the complaint. In opposition, Plaintiff argues that (1) Defendant remains in default in this action, and accordingly, must demonstrate a reasonable excuse for its default and a meritorious defense to the instant action; and (2) that FAPA, by its plain terms, does not apply to the instant action. Regarding the latter. Plaintiff contends that FAPA applies to any foreclosure action pending at the time of its enactment provided that the final judgment and sale had been entered but not yet enforced. Plaintiff asserts that because the Judgment of Foreclosure and Sale has been entered in this action and the sale scheduled, though repeatedly delayed, the action is in enforcement and therefore FAPA does not apply. This Court, in the September 9 Order, did not address Defendant’s argument, merely noting that Defendant, despite having filed the cross-motion, remained in default. Although still in default, Defendant now seeks leave to renew the prior order. However, the Court agrees with Plaintiff that the existence of a prior action pending is an affirmative defense that Defendant was required to raise in his answer had he not defaulted in this action. The changes to RPAPL §1301(3) concerning the existence of a prior action pending did not introduce a new concept to the RPAPL, but rather, expanded upon the existing statute, the failure to comply with which Defendant could have asserted in his answer. Regardless of the merits of Defendant’s argument, the fact remains, as the Court noted in the September 9 Order, that Defendant is in default. Accordingly, it is ORDERED that Defendant Patrick Brown’s motion for leave to renew this Court’s prior order granting the judgment of foreclosure and sale is DENIED. This shall constitute the Decision and Order of the Court. Dated: January 23, 2024
