VETOED

Gov. Kathy Hochul on Monday night vetoed the Grieving Families Act, legislation that would have overhauled state law related to wrongful death civil claims. In a veto message and a recent opinion piece, the governor claimed the Legislature passed it without full consideration of its impacts but said she was open to negotiating a change in the current statute.

The bill would have expanded the categories of people who could have sought damages due to a wrongful death to include those suffering emotional anguish as well as mere economic losses. It would also have extended the two-year statute of limitations to bring a wrongful death lawsuit by 18 months. According to news reports: "Business and health care associations spent a significant amount of time lobbying the governor and her staff in opposition to the measure, filings show. Insurance, business and trade associations cautioned that reforms would bring an accompanying spike in medical insurance and liability premiums by expanding the kinds of damages that are recoverable. An oft-cited analysis by the Seattle-based actuarial firm Milliman posited that expanding damages awarded based on grief and loss would increase general and auto liability insurance premiums by over 11 percent, or an estimated $2.14 billion, for residents and businesses. "

REMOTE NOTARY

A new law, NY Executive Law Section 135-c, authorizes notaries to perform electronic notarial acts, provided they first register with the Department of State and comply with new rules for performing electronic notarizations. On February 1, 2023, notaries wishing to provide electronic notary services will be able to register as an Electronic Notary with the Department of State.

These changes became effective on January 25, 2023. For questions or concerns regarding the new rules, please call (518) 474-4429.

Here is the FAQ.

LOOK AT THE WEATHER - IS THE COURT OPEN?

Yesterday, I had 5 hearings scheduled in the Berkshires and was ready to leave when I received a notice that the courts were closed due to snow. I got this notice immediately by checking with court closing websites and signing up for emergency notices.

In Massachusetts, see https://www.mass.gov/info-details/emergency-or-weather-related-court-closings 

In New York, see https://www.nycourts.gov/notice/emergency-alerts.shtml

UNEMPLOYMENT BENEFITS - QUITING WORK TO TAKE CARE OF ELDERLY FAMILY

The population ages and I receive many questions on this issue. A claimant who voluntarily separates from employment is disqualified if the separation is “without good cause.” But under Labor Law §593.1 (b)

"(b) A claimant shall not be disqualified from receiving benefits for separation from employment due to any compelling family reason.  For purposes of this paragraph, the term “compelling family reason” shall include, but not be limited to, separations related to any of the following:

......

(ii) the illness or disability of a member of the individual's immediate family.  For the purposes of this subparagraph:

(A) The term “illness” means a verified illness which necessitates the care of the ill person for a period of time longer than the employer is willing to grant leave (paid or otherwise).

(B) The term “disability” means a verified disability which necessitates the care of the disabled person for a period of time longer than the employer is willing to grant leave (paid or otherwise).  “Disability” encompasses all types of disability, including:  (1) mental and physical disability;  (2) permanent and temporary disabilities;  and (3) partial and total disabilities."

And according to a DOL manual:

"Practice Tip:

In cases where a claimant quit in order to provide care for an ill family member, the following must be determined:

• Whether such care was medically required or whether the claimant simply felt an obligation to provide such care (for example, a claimant who quits to assist an elderly parent);

• Whether the care was long-term or short-term, and in the latter instance, whether the claimant could have obtained a leave of absence; and

• Whether there was anyone else who could provide the care, other than the claimant.

The claimant can accomplish this through presentation of medical documentation or credible testimony from a medical professional regarding the family member’s condition. Other family members or the ill family member may also provide testimony. If it is found that it was necessary for the claimant to provide this care, an issue of availability may be present. The judge may refer the matter back to the Department of Labor for investigation and consideration of this issue."

CLE FEBRUARY 5 AT 11:45 AT NASSAU COUNTY BAR ASSOCIATION

FORECLOSURE ABUSE PREVENTION ACT

The Foreclosure Abuse Prevention Act (the “FAPA”) (Senate Bill S5473, passed May 3, 2022, and the companion Legislature Bill A7737) was signed into law on December 30, 2022 by New York State Governor Kathy Hochul and addresses the various interpretations regarding statute of limitations for foreclosure actions. This is from the NY Senate:

"BILL NUMBER: S5473D Revised 5/4/2022

SPONSOR: SANDERS
 
TITLE OF BILL:

An act to amend the real property actions and proceedings law, the
general obligations law and the civil practice law and rules, in
relation to the rights of parties involved in actions commenced upon
real property related instruments

 
PURPOSE AND INTENT OF BILL:

The Legislature finds that there is an ongoing problem with abuses of
the judicial foreclosure process; that the problem has been exacerbated
by court decisions which, contrary to the intent of the Legislature,
have given mortgage lenders and loan servicers opportunities to avoid
strict compliance with remedial statutes and manipulate statutes of
limitation to their advantage; and that the purpose of the present reme-
dial legislation is to clarify the meaning of existing statutes, codify
correct judicial applications thereof, and rectify erroneous judicial
interpretations thereof.

Accordingly, this bill amends certain statutes and rules to clarify the

existing law and overturn those decisions that have strayed from legis-
lative prescription and intent. These amendments and clarifications will
ensure the laws of this state apply equally to all litigants, including
those currently involved in mortgage foreclosures and related actions.
The remedial aim of the bill is to thwart and eliminate abusive and
unlawful litigation tactics that have been employed by foreclosure
plaintiffs to the prejudice of homeowners throughout New York. That some
of these tactics have been sanctioned by the judiciary has resulted in
perversion of longstanding law and created an unfair playing field that
favors the mortgage banking and servicing industry at the expense of
everyday New Yorkers.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill provides that this act shall be known as the
"Foreclosure Abuse Prevention Act."

Section 2 of the bill amends RPAPL 1301 (3) by clarifying that compli-
ance with the leave of court requirement thereof is a condition prece-
dent to the commencement of any other action to recover any part of the
mortgage debt, which includes an action to foreclose a mortgage, and the
failure to strictly comply with this condition precedent shall result in
the dismissal of such other action where, prior to the entry of a final
judgment in such other action, a defendant raises the failure to comply
with the condition precedent.  Subdivision (3) is also amended to clari-
fy, harmonize, and codify, in part, developed decisional law concerning
"de facto" discontinuances, insofar as the commencement of any such
other action while a prior action is pending shall be deemed to discon-
tinue the prior action, unless a defendant raises the failure to comply
with the leave of court condition precedent or seeks dismissal upon a
ground set forth in CPLR 3211 (a) (4). The section further amends RPAPL
1301 by adding subdivision (4) to clarify that the leave of court
requirement under subdivision (3) shall not constitute a stay or statu-
tory prohibition within the meaning of CPLR 204 (a). New subdivision (4)
further clarifies that if the mortgage securing the bond or note repres-
enting the debt so secured by the mortgage is adjudicated as time barred
by a court of competent jurisdiction, any other action to recover any
part of the same mortgage debt is equally time barred.

Section 3 of the bill amends subdivisions (4) and (5) of Section 17-105
of the General Obligations Law to clarify that these subdivisions repre-
sent the exclusive means by which parties are enabled to effectuate a
waiver, postponement, cancellation, resetting, tolling, revival or
extension of time limited by statute for commencement of an action or
proceeding and interposition of a claim to foreclose a mortgage.

Section 4 of the bill amends CPLR 203 by adding subdivision (h) to clar-
ify that once a cause of action has accrued, no party may unilaterally
"de-accrue" the cause action or otherwise effectuate a unilateral exten-
sion of the limitations period prescribed by statute to commence an
action and to interpose the claim, unless expressly prescribed by stat-
ute.

Section 5 of the bill amends CPLR 205 (c) to specify that section 205
shall not apply to proceedings governed by CPLR 205-a.

Section 6 of the bill adds a new section CPLR 205-a to clarify the
existing law concerning CPLR 205 (a), insofar as its application to
actions upon certain real property related instruments. Subdivision (a)
of CPLR 205-a clarifies that the six-month extension afforded to the
original plaintiff under that subdivision is unavailable where the prior
action is terminated as a result of voluntary dismissal or discontin-
uance (e.g., CPLR 3217 (a) or (b); failure to obtain personal jurisdic-
tion over the defendant; final judgment upon the merits; or a dismissal
of the complaint for any form of neglect, including, but not limited to
those specified in CPLR 3126 (3), CPLR 3215 (c), CPLR 3216, CPLR 3404,
violation of any court rules or individual part rules, failure to comply
with any court scheduling orders, default due to nonappearance for
conference or at a calendar call, or failure to timely submit any order
or judgment, regardless of the specificity, or lack thereof, utilized in
the dismissal order.  The statute removes the former requirement that
where a dismissal is warranted for neglect to prosecute, "the judge
shall set forth on the record the specific conduct constituting the
neglect." CPLR 205-a (a) (1) clarifies that a successor in interest or
assignee of the original plaintiff is not entitled to the six-month
extension, unless pleading and proving that such assignee is acting on
behalf of the original plaintiff, such that only the original plaintiff,
upon whose behalf the claim was timely asserted within the original
six-year limitations period prescribed by law (i.e., without the six-
month extension), may benefit from the savings provision. CPLR 205-a (a)
(2) provides and clarifies that, where applicable, the original plain-
tiff may only receive one six-month extension and no court shall allow
the original plaintiff to receive more than one six-month extension.
CPLR 205-a (b) provides and clarifies that, where applicable, any claim
or defense timely interposed by a defendant in an answer served in the
prior action will be deemed timely interposed in the new action.

Section 7 of the bill amends CPLR 213 (4) by adding two new paragraphs,
(a) and (b), to clarify, codify, and harmonize established principles of
estoppel applicable to the statute of limitations to commence an action
on an instrument described under the subdivision where multiple actions
exist upon such instruments and the validity of the cause of action
accrual events thereunder are challenged.

Section 8 of the bill amends CPLR 3217 by adding a new subdivision (e)
to clarify that the voluntary dismissal or discontinuance of any action
upon an instrument described in CPLR 213 (4), including an action to
foreclose a mortgage, by any means, shall not, in form or effect, waive,
postpone, cancel, toll, extend, revive, or reset the applicable limita-
tions period, or the expiration thereof, unless expressly prescribed by
statute. Once a cause of action has accrued, CPLR 3217 (e) clarifies
that the voluntary dismissal or discontinuance of an action upon an
instrument described under CPLR 213 (4) shall not effectuate a "de-ac-
crual" of the cause of action.

Section 9 of the bill contains the severability clause of the legis-
lation.

Section 10 of the bill provides for the effective date.

 
JUSTIFICATION:

There is an urgent need to pass this bill to overrule the Court of
Appeals' recent decision in Freedom Mtge. Corp. v Engel (37 NY3d 1
(2021) ("Engel"). Engel effectively put the ability to unilaterally
manipulate, arrest, stop, and restart the limitations period prescribed
CPLR 213 (4), at will, directly in the hands of mortgage foreclosure
plaintiffs and their servicers, to the clear detriment of New York home-
owners. No other civil plaintiff in this state is extended such unilat-
eral and unfettered powers. As a direct result of Engel, trial and
appellate courts throughout the State have been bombarded with a flurry
of motions made by mortgage lenders and servicers to re-open cases, some
having been dismissed years ago on statute of limitations grounds, on
the basis that Engel represents a change or clarification in the deci-
sional law that, in effect, not only exempts mortgage foreclosure plain-
tiffs from having the statute of limitation applied to them, but gives
them unilateral and unbridled control to manipulate calculation of the
six-year period provided under CPLR 213 (4) (contra Bank of N.Y. v
Silverberg, 86 AD3d 274, 283 (2d Dept 2011) ("(T)he law must not yield
to expediency and the convenience of lending institutions. Prop er
procedures must be followed to . . . assure the enforcement of the rules
that govern real property")). This, in turn, has led to an overburdening
of the judicial system and uncertainty on the part of innumerable home-
owners currently trapped in an undue state of judicial purgatory, with
the fate of their homes suspended in incertitude. Thus, while the Legis-
lature fully agrees with the judiciary that "clear" and "bright line"
rules should govern actions involving real property related instruments
(see Bank of Am., N.A. v Kessler, 202 AD3d 10, 14 (2d Dept 2021); citing
Engel, 37 NY3d at 19, 20, 24), the rules pronounced in Engel' contravene
the legislative purpose and express language of numerous statutes and
undermine the important public policy of giving repose to human affairs.

Accordingly, this remedial legislation seeks to level the playing field
for all parties engaged in litigation involving mortgage related real
property instruments and ensure the statute of limitations not only
applies equally to all, but is impervious to unilateral manipulation. In
doing so, the bill aims to further clarify and reaffirm the legislative
intent of a wide spectrum of laws that have been: (1) manipulated and
abused by mortgage lending and servicing institutions; and (2) misunder-
stood and/or misapplied by the courts.


The Legislature recognizes that "statutes of limitation not only save
litigants from defending stale claims, but also 'express a societal
interest or a public policy of giving repose to human affairs' (ACE
Securities Corp. v DB Structured Products, Inc., 25 NY3d 581, 593
(2015); quoting John J. Kassner & Co. v City of New York, 46 NY2d 544,
550 (1979)). If the law were to permit lenders to unilaterally reset the
statute of limitations, a great number of foreclosure cases that would
otherwise be time barred could proceed ad infinitum, with the strain on
judicial resources ultimately being subsidized by New York taxpayers
(see U.S. Bank N.A. v Papanikolaw, 62 Misc 3d 1207(A), 2019 NY Slip Op
50026(U), *3 (Sup Ct, Rockland County 2019) (recognizing "protracted
uncertainty" and "notable... expenditure of judicial resources" caused
by multiple successive foreclosure actions)). Therefore, the consistent
and evenhanded enforcement of the statute of limitations advances the
interests of litigants, relieves burdens on courts, and is a matter of
fundamental fairness.

 
RPAPL 1301

Insertion of the phrase "including an action to foreclose the mortgage"
in subdivision (3) clarifies that a mortgage foreclosure action is
another action "to recover any part of the mortgage debt" within the
meaning of RPAPL 1301 (3), thereby codifying the Court's holding in
Jamaica Say. Bank v M.S. Inv. Co. (274 NY 215, 219 (1937) ("An action to
foreclose a mortgage is not an action to recover the mortgage debt from
the mortgagor personally, but to collect it out of the land by enforcing
the lien of the mortgage") (internal quotation marks & citations omit-
ted)). Prior judicial rulings - which had narrowly interpreted the leave
of court requirement from maintaining simultaneous actions to enforce
the note without prior leave of court - are no longer to be followed
(e.g., Deutsche Bank Natl. Tr. Co. v Gould, 189 AD3d 576, 576 (1st Dept
2020)).

The use of the imperative "shall" with respect to the requirement to
obtain prior leave of court connotes a mandatory requirement (e.g.,
People v Ricken, 29 AD2d 192, 193 (3d Dept 1968), affd 27 NY2d 923
(1970)). Yet, the mandate of the subdivision has been whittled away by
judicial interpretation. The clarification of condition precedent
language is to ensure RPAPL 1301 (3) is afforded the same strict compli-
ance standard as its kindred RPAPL Article 13 condition precedents (see
RPAPL 1303, 1304, 1306 (each section containing the phrase "shall be a
condition precedent"); cf. Aurora Loan Servs., LLC v Weisblum, 85 AD3d
95, 102-103 (2d Dept 2011) (applying strict compliance standard to RPAPL
1303 and 1304); accord TD Bank, N.A. v Leroy, 121 AD3d 1256, 1259-1260
(3d Dept 2014) (same strict compliance standard applied to RPAPL 1306)).
While courts have, on occasion, correctly recognized compliance with
RPAPL 1301 (3) to be a condition precedent to the commencement of an
action (e.g., Sabbatini v Galatini, 43 AD3d 1136, 1139 (2d Dept 2007)),
with the failure to strictly comply requiring dismissal (e.g., Sec.
Natl. Servicing Corp.  v Liebowitz, 281 AD2d 615, 616 (2d Dept 2001)),
RPAPL 1301 (3) is the only RPAPL Article 13 condition precedent in which
courts routinely, and inappropriately, apply CPLR 2001 or common-law
doctrines (now clarified and codified herein) to disregard or otherwise
excuse violations thereof, typically under the guise of the prior action
being "de facto" discontinued or "effectively abandoned," thereby excus-
ing the plaintiff from seeking the leave of court expressly required by
the subdivision (see e.g., Wells Fargo Bank, N.A. v Irizarry, 142 AD3d
610, 611 (2d Dept 2016); accord Bosco Credit V Trust Series 2012-1 v
Johnson, 177 AD3d 561, 562 (1st Dept 2019); U.S. Bank Trust, N.A. v
Humphrey, 173 AD3d 811, 811-812 (2d Dept 2019); MLB Sub I, LLC v Grimes,
170 AD3d 992, 994 (2d Dept 2019)). The failure to satisfy a pre-action
condition precedent can neither be cured nor disregarded after the fact;
the existence of prejudice or a lack thereof is irrelevant (see Weisb-
lum, 85 AD3d at 107; citing CPLR 2001 ("Where, as here, the condition
sought to be disregarded is a mandatory condition precedent, the plain-
tiffs failure to comply cannot be disregarded"); accord Leroy, 121 AD3d
at 159-1260; CIT Bank, N.A. v Anderson, No. 16-CV-1712, 2019 US Dist
LEXIS 137755, at *5-8 (EDNY Aug. 14, 2019)). The amendment reinforces
this conclusion insofar as RPAPL 1301 (3) is concerned.

The failure to comply with the leave of court condition precedent may
not be excused by finding that the prior action was "de facto
discontin(ued)" or "effectively abandoned" (Humphrey, 173 AD3d at 812);
or that the defendant was not prejudiced thereby (Irizarry, 142 AD3d at
611); nor by deeming the pre-action failure a mistake, omission, defect,
or irregularity that could be overlooked or disregarded (id.; citing
2001). Accordingly, the "deemed discontinued" language of the amended
RPAPL 1301 (3) harmonizes and codifies longstanding jurisprudence that
the commencement of a second action constitutes a discontinuance of the
first action (see Credit-Based Asset Servicing & Securitization, LLC v
Grimmer, 299 AD2d 887, 887-888 (4th Dept 2002); Bank of America, N.A. v
Ali,AD3d, 2022 NY Slip Op 00838, *4 (2d Dept 2022) (Hinds- Radix, J.,
dissenting)), except where a defendant, prior to the entry of a final
judgment in the latter action, raises the failure to comply with this
leave-of-court condition precedent, or seeks dismissal or vacatur upon a
ground set forth in CPLR 3211 (a) (4), in which case the prior action
shall not be deemed discontinued, as was always the intent of the stat-
ute.

The amendment to subdivision (3) and the new subdivision (4) are also
intended to overrule Citimortgage, Inc. v Ramirez (192 AD3d 70 (3d Dept
2020)) by clarifying that under well-established election of remedies
principles:

(1) RPAPL 1301 (3) shall not constitute a stay or statutory prohibition
within the meaning of CPLR 204 (a); and

(2) If the mortgage securing the bond or note representing the debt so
secured by the mortgage (collectively, the mortgage debt) is adjudicated
as time barred by a court of competent jurisdiction, any other action
upon all or part of the same mortgage debt is equally time barred.

Indeed, since the leave of court requirement is a condition precedent,
and not a statutory prohibition, it never tolls the statute of limita-
tions (Daldan, Inc. v Deutsche Bank Natl. Tr. Co., 188 AD3d 989, 991 (2d
Dept 2020); see generally Barchet v New York City Transit Authority, 20
NY2d 1, 6 (1967)).

 
GOL 17-105

Subdivisions (4) and (5) are amended to expressly overrule Engel by:

  (1)  clarifying  the Legislature's intent that the general obligations
law be the exclusive means by which parties  are  enabled  to  postpone,
cancel,  reset, toll, revive or otherwise effectuate an extension of the

time prescribed by law for the commencement of an action  or  proceeding
upon an instrument described under CPLR 213 (4);

  (2)  clarifying  that  unless  effectuated  in  strict accordance with
section 17-105 of the general obligations law, the discontinuance of  an
action  upon  an  instrument described under CPLR 213 (4), by any means,
shall not, in form  or  effect,  function  as  a  waiver,  postponement,
cancellation, resetting, tolling, or extension of the statute of limita-
tions; and

  (3) codifying the relevant provisions of judicial rulings such as John
J.  Kassner & Co. (46 NY2d at 550-552); Petito v Piffath (85 NY2d 1, 8-9
(1994)); Sotheby's, Inc. v Mao (173 AD3d 72, 76-81 (1st Dept  2019),  lv
denied  34  NY3d  902 (2019)); HSBC Bank USA, N.A. v Khemraj (72 Misc 3d
1206(A), 2021 NY Slip Op 50656(U),  *3-4  (Sup  Ct,  Westchester  County
2021));  and US Bank N.A. v Szoffer (58 Misc 3d 1220(A), 2017 NY Slip Op
51976(U), *2 (Sup Ct, Rockland County 2017), revd 196 AD3d 666 (2d  Dept
2021)).

With  its enactment of General Obligations Law 17-105 (L 1963, ch 576, §
1), the Legislature provided the exclusive means by which parties  to  a
mortgage  may  agree to waive, extend, postpone, or promise not to plead
the statute of limitations. Yet, this provision has been largely ignored
in practice, with  lenders  resorting  to  the  voluntary  dismissal  or
discontinuance  of  foreclosure  actions  (by  stipulation,  notice,  or
motion)  or  unilateral  writings  such  as  so-called  "de-acceleration
letters"  to  reset and, in effect, extend the statute of limitations to
foreclose a mortgage. These unilateral writings flout  the  requirements
of the General Obligations Law.

In  Engel,  the  Court  held  that, as a matter of law, a stipulation of
discontinuance of a foreclosure action revokes the election to  acceler-
ate,  absent the noteholder's contemporaneous statement to the contrary,
and thus resets the statute of limitations (37 NY3d at 19).    A  stipu-
lation  of  discontinuance is a contract (Brad H. v City of New York, 17
NY3d 180, 185 (2011); Yonkers Fur Dressing Co. v Royal Ins.  Co., 247 NY
435, 444 (1928)). "The public policy represented by the statute of limi-
tations (and the General Obligations Law) becomes  pertinent  where  the
contract  not  to  plead  the statute is in form or effect a contract to
extend the period as provided by statute or to postpone  the  time  from
which  the period of limitations is to be computed" (Deutsche Bank Natl.
Trust Co. V Flagstar Capital Mkts., 32 NY3d  139,  152  (2018),  quoting
John J. Kassner & Co., 46 NY2d at 551 (internal quotation marks omitted)
(first set of emphasis added, second set in original)). Thus, the effect
of  a  stipulation of discontinuance under Engel is to extend, postpone,
and ultimately reset the accrual of the statute  of  limitations  on  an
action to foreclose a mortgage. By interpreting a stipulation of discon-
tinuance,  which  is  silent to the statute of limitati ons and contains
none of the language required by General Obligations Law  17-105,  as  a
revocation of acceleration, the courts have permitted such revocation to
"reset" the statute of limitations - meaning a claim for which the stat-
ute  of  limitations  has  already  accrued, is then treated, in effect,
"de-accrued," after the fact, such that the statute of limitations is no
longer running on the claim.  Under  Engel,  this  back-and-forth  yo-yo
effect  of  "accrual" then "de-accrual" may go on, ad infinitum, and has
the effect of extending and resetting the  accrual  of  the  statute  of
limitations  without  strict  compliance  with  General  Obligations Law
17-105. While the parties to an action may agree to  waive  or  postpone
the  accrual  of  the statute of limitations on an action to foreclose a
mortgage after the claim  has  accrued,  that  agreement  must  strictly
comply with the General Obligations Law (Petito, 85 NY2d at 8-9).

The  amendments  are  intended  to  clarify  that General Obligation Law
17-105 is the exclusive means by which the statute of limitations for an
action to foreclose a mortgage may be unilaterally waived or  postponed,
thus codifying such decisional law as Batavia Townhouses, Ltd. v Council
of  Churches  Hous.  Dev.  Fund  Co., Inc. (189 AD3d 20, 24-27 (4th Dept
2020), lv granted, 36 NY3d 906 (2021))  and  expressly  rejecting  Wells
Fargo  Bank  N.A.  v Grover (165 AD3d 1541 (3d Dept 2018); cf. Bradley v
New Penn Fin., LLC, 198 AD3d 1273, 1274-1275 (4th Dept 2021), lv  denied
198  AD3d 1273 (4th Dept 2021); Nationstar Mtge., LLC v Dorsin, 180 AD3d
1054, 1057 (2d Dept 2020) (Bradley and  Dorsin  correctly  declining  to
follow  Grover)).  The  amendments  further clarify that neither General
Obligations Law 17-101 nor an acknowledgment of the debt shall apply  to
affect  the statute of limitations of a mortgage foreclosure action (see
Mem of St Dept of Law in Support, NYS Attorney  General,  at  1-3,  Bill
Jacket,  L  1961,  ch 582; Letter in Support from St Law Rev Comm, March
10, 1961 at 1-10, Bill Jacket, L 1961, ch 582; Memo of  Law  in  Support
from Law Rev Comm to Legis, at 7-14, Bill Jacket, L 1961, ch 582; Letter
in  Support from St Jud Conf, March 8, 1961 at 1-2, Bill Jacket, L 1961,
ch 582; accord Batavia, 189 AD3d at 24-27).

 
CPLR 203 (H)

CPLR 203 (h) is added to: (1) overrule Engel as violative of  CPLR  201,
and  inconsistent with the legislative intent of CPLR 203 and the public
policy of the statute of limitations; and (2) clarify that no party  may
unilaterally waive, postpone, cancel, toll, revive, or reset the accrual
of  a cause of action, or otherwise effectuate a unilateral extension of
the limitations period prescribed by law to commence an  action  and  to
interpose  the  claim or, in other words, self-effectuate a "de-accrual"
of a claim, unless expressly prescribed by statute(2)  (see  e.g.,  Mao,
173  AD3d  at  76-81,  n  9). Prior to the accrual of a cause of action,
parties may not agree to extend or waive the statute of limitations (see
John J. Kassner & Co., Inc., 46 NY2d at 551; Gen. Oblig. Law 17-105(1)).

Stated simply, the same way personal injury plaintiffs cannot  unilater-
ally  reset or otherwise extend the applicable statute of limitations to
interpose their claim by  "un-injuring"  and  then  "re-injuring"  them-
selves, this new subdivision makes clear that once a cause of action has
accrued  - meaning once an injury has been sustained, economic or other-
wise - parties have no unilateral right or ability to declare themselves
"un-harmed" and then  "re-harmed"  which,  by  design  or  happenstance,
effectuates  an unlawful extension of the time limited by law for inter-
position of the claim, unless expressly prescribed by statute.

In the context of actions commenced against real property owners,  mort-
gagors,  and  borrowers,  including foreclosure actions, and contrary to
Engel, a lender's unilateral "de-acceleration" of a mortgage loan,  even
if  permitted under the express terms of the mortgage loan documents(3),
cannot effectuate "de-accrual" of  the  cause  of  action  or  otherwise
unwind the applicable limitations period, under the guise of having been
accomplished by operation of law.  Thus, this section is added to clari-
fy that a lender's unilateral written revocation of its demand for imme-
diate  payment  in full-otherwise known as a "de-acceleration" notice or
letter (see e.g., Pennymac Corp. v Smith, 199 AD3d  820,  822  (2d  Dept
2021);  Bayview  Loan  Servicing  v  Dalal,  184 AD3d 547, 547 (1st Dept
2020))-has no effect on the running of the statute  of  limitations  nor
the expiration thereof.

Under  CPLR  201,  "(a)n  action . . . must be commenced within the time
specified in this article unless a different time is prescribed  by  law
or  a  shorter  time  is prescribed by written agreement. No court shall
extend the time limited by  law  for  the  commencement  of  an  action"
(emphasis  added).  This  amendment clarifies that a lender's unilateral
revocation of its demand for immediate payment in full is  not  a  means
"prescribed  by law" to postpone, reset, or otherwise affect the accrual
of the statute of limitations (accord Mao, 173 AD3d at 77-78).  A  party
to a contract may not, by waiving or extending the other party's accrued
obligation  to render a performance when due under the contract (but not
the performance itself), extend its time under the  statute  of  limita-
tions to sue for breach without complying with Article 17 of the General
Obligations Law.

The  Legislature has specified the methods by which the statute of limi-
tations in a mortgage foreclosure action could be waived or extended  in
Article  17  of the General Obligations Law (see Gen.  Oblig. Law 17-105
(express written agreement to extend, waive or not plead  as  a  defense
the  statute  of limitations); 17-107 (unqualified payment on account of
mortgage indebtedness effective to revive statute  of  limitations)).  A
bare  stipulation of discontinuance or a lender's unilateral decision to
revoke its demand for full payment is not a  method  prescribed  by  the
Legislature  for waiving, extending, or modifying the statute of limita-
tions.

"De-acceleration" is merely the lender's election to revoke  its  demand
for full payment; it does not "de-accrue" the claim for statute of limi-
tations  purposes.  "Under  the  statute of limitations, the time within
which a plaintiff must commence an action 'shall be  computed  from  the
time  the  cause  of action accrued to the time the claim is interposed'
(McCoy v Feinman, 99 NY2d 295, 300-301 (2002), quoting CPLR 203(a);  see
Hahn  Auto.  Warehouse, Inc. v Am. Zurich Ins. Co., 18 NY3d 765, 770-771
(2012)).4 CPLR 201, Article 17  of  the  General  Obligations  Law,  and
public  policy  all demonstrate that the statute of limitations is not a
device a party may  unilaterally  manipulate  to  its  advantage  (e.g.,
Ackerman  v Price Waterhouse, 84 NY2d 535, 543 (1994) (rejecting accrual
date calculation method that "is subject to manipulation,  rendering  it
inconsistent with the definite statutory period")). To permit a lender's
unilateral  "de-acceleration" or a mere stipulation of discontinuance to
reset the statute of limitations would be inconsistent not only with the
statute of limitations, itself, "but also with the mandate of  CPLR  201
that  '(n)o court shall extend the time limited by law for the commence-
ment of an action" (Fourth Ocean Putnam Corp.  v  I  nterstate  Wrecking
Co.,  Inc.,  66 NY2d 38, 42 (1985), quoting CPLR 201; cf. McCoy, 99 NY2d
at 300-301 ("While courts have discretion to waive other time limits for
good cause (see CPLR 2004), the Legislature  has  specifically  enjoined
that  '(n)o court shall extend the time limited by law for the commence-
ment of an action"')).

While a "de-acceleration" notice or letter (or other unilateral  writing
or  act  of  a lender) purporting to revoke a prior demand for immediate
payment in full may not expressly reference the statute of  limitations,
its  effect,  as erroneously permitted under existing decisional law, is
to reset the statute of  limitations  on  an  already-accrued  cause  of
action  (e.g.,  Smith,  199 AD3d at 822). Since the public policy of the
statute of limitations is implicated where a  writing  is  "in  form  or
effect  a  contract  to  extend  the period as provided by statute or to
postpone the time from which the period of limitation is to be computed"
(Deutsche,  32 NY3d at 152; quoting John J. Kassner & Co., Inc., 46 NY2d
at 551 (internal quotation marks omitted) (first set of emphasis  added,
second  set  in original)), this section clarifies that no party may, in
form or effect,  unilaterally  waive,  extend,  reset  or  postpone  the
accrual  of  the  statute of limitations, unless expressly prescribed by
statute.

 
CPLR 205 (C))

The Legislature finds that there has been extraordinary abuse and  judi-
cial misinterpretation of the "savings provision" of CPLR 205 (a) in the
context  of  mortgage  foreclosure  actions (see e.g., Wells Fargo Bank,
N.A. v Eitani, 148 AD3d 193 (2d Dept 2017),  appeal  dismissed  29  NY3d
1023  (2017);  U.S.  Bank  N.A.  v  Gordon, 158 AD3d 832 (2d Dept 2018),
appeal dismissed 31 NY3d 1144 (2018); Bank of NY Mellon  v  Slavin,  156
AD3d 1073 (3d Dept 2017), appeal dismissed 33 NY3d 1128 (2019); Deutsche
Bank Natl. Trust Co. v Gouin, 194 AD3d 479 (1st Dept 2021)). In light of
this  finding,  CPLR  205 (c), as amended, clarifies that CPLR 205 shall
not apply to an action commenced upon an instrument described under CPLR
213 (4). Rather, CPLR 205-a shall be the operative "savings statute" for
such actions (see generally Matter of World Trade Ctr.  Lower  Manhattan
Disaster  Site  Litig.,  30  NY3d  377,  394-400,  401-406 (2017) (claim
revival statues affecting real property have always been treated differ-
ently and with heightened constitutional scrutiny in comparison to  non-
real property related revival statutes)).

 
CPLR 205-A

This  new  section  CPLR  205-a  is hereby added to clarify the intended
meaning of several words contained in the existing statute from which it
is modeled (CPLR 205(a)) and included within the subdivision by  codify-
ing  the  correct  decisional law interpreting the same, while expressly
rejecting court opinions inconsistent therewith.

First, CPLR 205 (a), as amended and reconstituted under CPLR 205-a  (a),
codifies  the Court's holding in Andrea v Arnone, Hedin, Casker, Kennedy
& Drake, Architects & Landscape Architects, P.C. (Habiterra  Assoc.)  (5
NY3d 514, 520 (2005); accord Marrero v Nails, 114 AD3d 101, 110 (2d Dept
2013);  Weisman,  Geller,  Spett & Modlin v Fischbach LLC, 111 AD3d 566,
567568 (1st Dept 2013); Wright v Venugopal, 58 AD2d 680,  681  (3d  Dept
1977))  and clarifies that a dismissal for any form of neglect includes,
but is not limited to, a dismissal made pursuant to CPLR 3126 (3),  CPLR
3215 (c), CPLR 3216, CPLR 3404, violation of any court rules or individ-
ual  part  rules,  failure  to  comply with any court scheduling orders,
default due to nonappearance for conference or at a  calendar  call,  or
failure  to  timely  submit  any  order  or  judgment, regardless of the
specificity, or lack thereof, utilized in the dismissal order.

The amendment deletes the requirement that the court "set forth  on  the
record  the  specific  conduct  constituting  the neglect, which conduct
shall demonstrate a general pattern of  delay  in  proceeding  with  the
litigation" (CPLR 205 
A). This language, added in 2008 (L 2008, ch 156,
§ 1), has occasioned erroneous judicial interpretations that the court's
recitation  of  the  "specific  conduct  . . .  (which) demonstrate(s) a
general pattern of delay" is a condition precedent to the bar against an
extension of the statute of limitations for a  neglect  based  dismissal
(see  Wells  Fargo  Bank  N.A.  v Kehres, 199 AD3d 869, 869-871 (2d Dept
2021);  U.S.  Bank  N.A., Tr. to Bank of Am., N.A.  v Kim, 192 AD3d 612,
613 (1st Dept 2021), appeal dismissed 37 NY3d 932 (2021); United  States
Bank  N.A.  v  Jalas,  195 AD3d 1122, 1123-1125 (3d Dept 2021); Deutsche
Bank Natl. Trust Co. v Baquero, 192 AD3d 660, 661-665  (2d  Dept  2021);
HSBC  Bank  USA,  N.A.  v  Janvier,  187 AD3d 999, 1001 (2d Dept 2020)).
Although we intended for the 2008 amendment to bring clarity as to "what
specifically constitutes a neglect to prosecute  particularly  where  it
falls  outside  Rule  3216" (Introducer's Mem in Support, Bill Jacket, L
2008, ch 156 at 6, 10), it appears  the  implemented  language  has  not
provided  the clarity we sought, at least not in the context of mortgage
foreclosure actions (see generally NYSBA Mem in Opposition, Bill Jacket,
L 2008, ch 156 at 12-13 (pointing  out  potential  shortcomings  of  the
amendment)).

To  be  clear,  the  Legislature  never intended to bring clarity to the
neglect-based termination carve-out of CPLR 205 (a) by hinging the  same
upon  subjectivities,  such as the idiosyncratic writing and descriptive
preferences inherent to, and invariably exercised by,  different  judges
and  justices  of the courts (see generally CPLR 2219(a) (empowering the
courts with the discretion to "give the determination  or  direction  in
such  details  as the judge deems proper")). Under such an approach, the
same conduct could (and has) lead to differing  statute  of  limitations
results, depending upon how detailed the prior court's recitation of the
facts  constituting  the  neglect  in  each instance. Such an outcome is
contrary to the public policy of the statute of limitations of promoting
the objectives of "finality, certainty and predictability," to the bene-
fit of both plaintiffs and defendants (ACE Sec. Corp., 25 NY3d  at  593;
Matter  of  Regina  Metro. Co., LLC v New York State Division of Hous. &
Community Renewal, 35 NY3d 332, 372 (2020)).

Nor should any act or omission of a court in detailing the extent of the
neglect be the arbiter of the expiration or extension of the statute  of
limitations,  especially  where it is the subsequent court, not the nisi
prius, that is given the ultimate power  of  review  and  interpretation
(see  Sokoloff  v Schor, 176 AD3d 120, 129-133 (2d Dept 2019) (analyzing
interplay of CPLR 205(a) with 5519(a)); cf., CPLR 201).  Rather,  it  is
the  dismissal  based  on the fact of neglect, itself, not the extent to
which the court detailed the conduct constituting such neglect, that  is
determinative.  Neglectful  plaintiffs should not avoid the consequences
of their neglect depending on how concise a prior court's  determination
reads  on  any given day, and it has never been the Legislature's intent
for such subjectivities to  control  important  matters  concerning  the
application  of  the statute of limitations and the limited availability
of extensions thereto. All this is now clarified by CPLR 205-a (a).

Second, CPLR 205 (a), as amended and reconstituted under CPLR 205-a  (a)
and (a) (1), codifies the Court's holding in Reliance Ins. Co. v Polyvi-
sion  Corp  (9  NY3d 52, 57-58 (2007); accord U.S. Bank N.A. v DLJ Mtge.
Capital, Inc., 141 AD3d 431, 433  (1st  Dept  2016),  affd  33  NY3d  72
(2019);  Craft EM CLO 2006-1, Ltd. v Deutsche Bank AG, 178 AD3d 552, 553
(1st Dept 2019)) and clarifies the six-month  extension  afforded  under
the  section  is  available  only  to  the original plaintiff and is not
intended to be extended to a different party because that "would open  a
new tributary in the law, presumably available to individuals as well as
corporations, and breathe life into otherwise stale claims" (Reliance, 9
NY3d  at 58). "(M)indful of the potential ramifications of a rule allow-
ing" otherwise, the Court correctly directed that CPLR 205 (a) should be
read "as it was written by the Legislature . . . ." (id.).

Yet,  in  direct  contravention of Reliance, the majority in Eitani held
that Wells Fargo Bank, N.A. (Wells Fargo), the assignee  of  a  mortgage
loan  originated  by Argent Mortgage Company, LLC (Argent), was entitled
to the six-month extension afforded to "the plaintiff'  under  CPLR  205
(a)  because  the  mortgage  loan  was assigned by Argent to Wells Fargo
during the pendency of the prior action, which was commenced  by  Argent
(see  148  AD3d  at  200-203).  This  holding  is  wrong and must not be
followed. In Eitani, Wells Fargo was not asserting the rights of  Argent
in  the  new  action. That is, Wells Fargo did not claim to be acting on
behalf or for the benefit of Argent. Rather, as correctly  explained  by
the dissent in Eitani, Wells Fargo was seeking to enforce its own rights
in  and  to  the  mortgage loan; the rights it acquired from Argent (148
AD3d at 206-209 (Leventhal, J., dissenting)). Therefore, Eitani and  its
progeny should not be followed (e.g., Gordon, 158 AD3d at 837-839).

Accordingly,  CPLR  205-a  (a) (1) now makes clear that unless acting on
behalf of the original plaintiff, a successor in interest or assignee of
that original plaintiff is  not  entitled  to  the  six-month  extension
afforded  under the subdivision, unless pleading and proving he, she, or
it is acting on behalf of the original plaintiff.  For  instance,  if  a
mortgage loan were held in a mortgage backed securitized loan trust, and
the  original  trustee  of  that  loan  trust,  Bank A, which previously
commenced a timely foreclosure proceeding on behalf of  the  loan  trust
that  terminated  for  a  reason  not specified under CPLR 205-a (a), is
succeeded and replaced as trustee of the loan trust by Bank  B,  and  an
assignment  of  mortgage  is  recorded  to  reflect that change; Bank B,
although both a successor in  interest  and  assignee  to  Bank  A,  the
original  plaintiff,  would nonetheless still be acting on behalf of the
original plaintiff within the meaning of CPLR 205-a (a) (1) in a  subse-
quent  action,  since the holder of the loan and the rights and benefits
thereunder (i.e., the loan trust) remained the same. The same  would  be
true  in  the  context  of  a  mortgage loan held by an estate where the
original representative thereof was succeeded or replaced by  a  new  re
presentative.  However,  if the estate or the loan trust sold, assigned,
or otherwise transferred the mortgage loan to any other person or  enti-
ty,  related or not, outside of the foregoing limited circumstances, the
transferee would be ineligible for the extension under  CPLR  205-a  (a)
(accord  Reliance,  9 NY3d at 57-58; contra Eitani, 148 AD3d at 200-203;
Gordon, 158 AD3d at 837-839).

Third, CPLR 205-a (a) specifies "the original defendant." This  specifi-
cation clarifies that the plaintiff must both timely file and effectuate
service  upon not just any defendant, but the original defendant, within
the six-month extended period (e.g., Rayo v New York, 882 F Supp 37,  39
(NDNY  1995)  ("In examining the language of Section 205(a), it is plain
that the six month extension applies only  if  the  original  court  had
personal  jurisdiction  over the same defendant as in the second case");
accord Raji v SG Americas Sec., LLC, 189 AD3d 514, 515 (1st  Dept  2020)
("CPLR  205(a) cannot apply to render plaintiff's claims against defend-
ant SG Americas Securities, Inc. (SG Inc.)  timely,  however,  since  SG
Inc.  was  not  a  party  to  the federal action"); see also Cazsador by
Cazsador v Greene Cent. Sch., 243 AD2d  867,  868-869  (3d  Dept  1997);
Caplan  v  Winslett,  218  AD2d  148,  153-154 (1st Dept 1996)). This is
consistent with the intention of CPLR  205  (a)  -  that  the  claim  be
asserted  against the original defendant within the original limitations
period (e.g., CPLR 213 
4 (six years)), and the  defendant  be  provided
actual  notice  of  the  action  within the original limitations period,
before  such period may be tolled or extended (see e.g., Matter of Gold-
stein v NY State Urban Dev. Corp., 13 NY3d 511, 521 (2009)).

Fourth, CPLR 205-a (a) (2) provides and clarifies that,  where  applica-
ble,  the  original  plaintiff  may  receive  no more than one six-month
extension under the subdivision, and no court shall allow  the  original
plaintiff  to  receive  more  than  a  single  six-month  extension. The
original plaintiff may only benefit from the subdivision once  (L  1992,
ch  216,  Governor's Bill Jacket at *12, Mem of Assemblyman Lentol at *1
("the party would receive no more extra time than the  six-month  period
set  forth  in this section . ."); see Ray v Ray, 22 F4th 69, 74 (2d Cir
2021) ("CPLR section 205(a), New York's Saving Statute,' does not permit
a litigant to file an otherwise untimely 'new action' within six  months
of  a  'prior  action,'  where  that prior action was, itself, only made
timely by a previous application of section 205(a)"); accord Shuhab HDFC
v Bates, 2008 NY Misc LEXIS 3725, *4-5, 239 NYLJ 118  (NY  Civ  Ct,  New
York County 2008)).

Fifth, CPLR 205-a (b) mirrors CPLR 205 (b), while at the same time modi-
fying  the  subdivision  to  include the clarified language set forth in
CPLR 205-a (a) and (a) (1), concerning the "original plaintiff."

 
CPLR 213 (4)

"Statutes of Limitation are designed to promote  justice  by  preventing
surprises  through the revival of claims that have been allowed to slum-
ber until evidence has been lost, memories  have  faded,  and  witnesses
have  disappeared"  (Britt  v  Legal  Aid  Socy., Inc., 95 NY2d 443, 448
(2000) (internal quotation marks & citations omitted)). In recent years,
foreclosure plaintiffs have avoided the peril of the statute of  limita-
tions  lapsing  by successfully arguing the accrual event, generally the
acceleration of the mortgage debt, was invalid due to their very own, or
their predecessors': (a) lack of capacity or standing to validly  accel-
erate  the  debt by or before the commencement of a prior action; and/or
(b) failure to  provide  the  borrower  with  a  contractual  notice  of
default/acceleration,  which  is generally a procedural condition prece-
dent to acceleration of the mortgage debt  (see  e.g.,  Wilmington  Say.
Fund  Socy.,  FSB  v  Rosenbaum,  197  AD3d  1132,  1133  (2d Dept 2021)
(addressing arguments of the original acceleration being invalid due  to
the  prior  plaintiff's  lack  of standing to sue); Everhome Mtge. Co. v
Aber, 195 AD3d 682, 685-689 (2d Dept 2021) (majority opinion);  cf.  id.
at  692-694  (minority  opinion)  (addressing  arguments of the original
acceleration event being invalid due to alleged non-compliance with  the
notice of default/acceleration requirements of the mortgage)).

The  Legislature finds that it imposes an undue burden on the courts and
the opposing party for a litigant to  assail  it  or  its  predecessor's
acceleration  of  a  mortgage  debt,  by or before the commencement of a
prior foreclosure action, to avoid a statute of limitations dismissal in
a later action, especially (but not limited to) where that  litigant  or
its  predecessor  made  affirmative representations to a court regarding
its lawful standing to sue or otherwise validly accelerate the  mortgage
debt. Rather, the law was well settled, for quite some time, insomuch as
"(w)hen  a  party  moves  . . . for a judgment dismissing a claim on the
ground that it is barred by the  Statute  of  Limitations,  it  is  that
party's  burden  initially to establish the affirmative defense by prima
facie proof that the Statute of Limitations  had  elapsed.  This  burden
does  not include an obligation on the moving party's part to negate any
or all exceptions that might apply to the statutory period" (Hoosac Val.
Farmers Exch., Inc. v AG Assets, Inc., 168 AD2d 822, 823 (3d Dept 1990);
accord  Doyon  v Bascom, 38 AD2d 645, 645-646 (3d Dept 1971)).  However,
courts have recently permitted foreclosure plaintiffs to depart from the
established law, going so far as  to  unduly  enl  arging  the  movant's
burden  and  requiring  negation of any exception that might be found or
raised by the opponent (see e.g., HSBC Bank USA, N.A. v Greene, 190 AD3d
417, 417-418 (1st Dept 2021); Bank of NY Mellon v Lagasse, 188 AD3d 775,
777 (2d Dept 2020)).  Decisions  such  as  these  should  no  longer  be
followed.

For  example,  litigants  confronted  with  running afoul the statute of
limitations have assailed their very own, or their predecessor's, stand-
ing to sue or capacity to validly accelerate the mortgage debt,  regard-
less  of  whether  the issue was actually, timely, or otherwise properly
asserted or raised by a defendant in the prior action (see e.g., J &  JT
Holding  Corp.  v  Deutsche  Bank Natl. Trust Co., 173 AD3d 704 (2d Dept
2019); Deutsche Bank Natl. Trust Co. v Gambino, 153 AD3d 1232  (2d  Dept
2017)),  by seeking an order of voluntary discontinuance a/k/a voluntary
dismissal (CPLR 3217 
B; 3212(b); Fed Rules Civ Pro rule  41(a)(2);  cf.
Fed  Rules  Civ  Pro rule 41(b); see e.g., Deutsche Bank Natl. Trust Co.
Ams. v Bernal, 56 Misc 3d  915,  920-921  (Sup  Ct,  Westchester  County
2017),  affd  186  AD3d  1491  (2d Dept 2020); see generally Brenhouse v
Anthony Indus., Inc., 156 AD2d 411, 412 (2d Dept 1989);  Westbury  Sleep
Prods.,  Inc.  v  Paramount  Sleep Prods., Inc., 98 AD2d 746, 747, n (2d
Dept 1983)). In essence, requesting the court for a judicial declaration
that acceleration of the mortgage debt was invalid which,  in  form  and
effect, constitutes an unlawful unilateral act by the plaintiff to reset
the  accrual of the cause of action, or otherwise effectuate an unlawful
unilateral extension  of  the  limitations  period  (CPLR  201;  203(h);
3217(e)).

Whether  a  plaintiff  is the owner or holder of the mortgage note as of
the commencement date of an action (i.e.,  whether  that  plaintiff  has
standing  to  foreclose)  is  a  fact which the plaintiff has (or should
reasonably have) superior knowledge before invoking judicial  assistance
with  the commencement of a legal action (see US Bank N.A.  v Nelson, 36
NY3d 998, 1011 (2020) (Wilson, J.  concurring)  (identity  of  owner  or
holder  of note at time of commencement of foreclosure action "is infor-
mation principally in the possession of the plaintiff and often  unknown
to  the defendant")). The rules of judicial conduct impose an obligation
upon litigants and attorneys alike to undertake  a  reasonably  diligent
factual investigation before commencing an action (22 NYCRR 130-1.1a(b);
22  NYCRR  130-1.1(c)). The prosecution of foreclosure actions by plain-
tiffs initially having affirmatively alleged the lawful standing to  sue
and/or  made  a  prima  facie showing thereof (e.g., Selene Fin., L.P. v
Coleman, 187 AD3d 1082, 1084 (2d Dept 2020); citing  U.S.  Bank  N.A.  v
Auguste,  173  AD3d 930, 933 (2d Dept 2019)), or who knew or should have
known of their lack standing, only to later "realize" or "discover" this
alleged lack of standing to avoid a statute of  limit  ations  dismissal
bar in a later action is deceitful, unlawful, and cannot be countenanced
(see CPLR 3012-b(a); RPAPL 1302 (1)(a); Matter of Hartsdale Fire Dist. v
Eastland  Constr., Inc., 65 AD3d 1345, 1346 (2d Dept 2009); quoting Maas
v Cornell Univ., 253 AD2d 1, 5 (3d Dept 1999), affd 94  NY2d  87  (1999)
('Under  the  doctrine  of judicial estoppel, or estoppel against incon-
sistent positions, a party is  precluded  from  inequitably  adopting  a
position  directly  contrary  to or inconsistent with an earlier assumed
position in the same proceeding'); cf. Festinger v Edrich, 32 AD3d  412,
413  (2d Dept 2006) ("application of the doctrine (of judicial estoppel)
. . . was essential to avoid a fraud upon the court and a mockery of the
truth-seeking function"); accord Karasik v Bird, 104 AD2d  758,  758-759
(1st Dept 1984)). At best, judicial condonation of this conduct allows a
litigant  to  avoid  the  consequences  of its own lack of diligence. At
worst, judicial condonation of this conduct permits a litigant to  avoid
sanction  for its affirmative misrepresentation to the court that it had
standing to maintain an action. Thus, while courts have  correctly  held
that  the signing of a foreclosure complaint, which contains a provision
declaring the mortgage debt immediately due and payable in full, even if
unfiled, constitutes one manner a valid election to accelerate the mort-
gage debt may occur (Puzzuoli v JPMorgan Chase Bank,  NA.,  55  Misc  3d
417,  427-428  (Sup Ct, Dutchess County 2016); Deutsche Bank Natl. Trust
Co. v Ahmed, 174 AD3d 855, 856 (2d Dept 2019)), the lack  thereof  shall
not  be  accorded with a negative inference, but shall too be met with a
presumption of validity (see generally David L. Ferstendig, 5  New  York
Civil  Practice:  CPLR  P  3020.00  (2019);  contra HSBC Bank, USA, NA v
Margineanu, 61 Misc 3d 973, 977-979 (Sup Ct, Suffolk County 2018), over-
ruled on other grounds by Dieudonne, 171 AD3d at 40).

The same holds true for a plaintiff or its predecessor's alleged failure
to comply with a contractual condition precedent, such as the service of
a predicate contractual written notice of default/acceleration prior  to
the commencement of a foreclosure action (see Aber, 195 AD3d at 685-689;
cf.  id.  at  692-694; see also Capital One, N.A. v Saglimbeni, 170 AD3d
508, 508-509 (1st Dept 2019)). A plaintiff knows  or  reasonably  should
know  whether  it  or its predecessor has complied with this contractual
condition precedent prior to the commencement of an action and,  to  the
extent  that  a lender other than the original lender (i.e., an assignee
or transferee of the note) is the  plaintiff  in  a  subsequent  action,
these  parties  routinely  profess  to  possess and rely on the business
records of their predecessors in their ordinary course of  business  and
routinely  rely  upon  these records to establish a prima facie cause of
action for foreclosure (see e.g., U.S. Bank  N.A.  v  Kropp-Somoza,  191
AD3d 918, 921 (2d Dept 2021)). Thus, the estoppel under CPLR 213 (4) (a)
and (b) creates no undue imposition upon litigants.

Hence,  the  addition  of paragraphs (a) and (b), which: (1) clarify and
codify the applicable principles of estoppel, insofar  as  all  acceler-
ation events, whether occurring prior to or by way of commencement of an
action,  are  presumptively  valid,  unless a prior action was dismissed
upon a timely interposed defense (see CPLR 3015(a);  3211(e)),  asserted
in  a  defendant's  motion  or application (see CPLR 3211(a); 3212 
B)5,
based on an express judicial determination that  no  valid  election  to
accelerate  the  instrument occurred prior to or by way of the commence-
ment of that action (e.g., Puzzuoli, 55 Misc 3d at 427-428; see  Saglim-
beni,  170  AD3d  at 508-509; Aber, 195 AD3d at 686; Avail Holding LLC v
Ramos, 820 F App'x 83, 86 (2d Cir 2020); Bank of NY Mellon v  Cort,  171
AD3d  1275,  1276  (3d  Dept  2019));  and (2) reflect the Legislature's
recognition of the inherent difficulties defendants encounter in  estab-
lishing a valid statute of limitations defense which, as per recent case
law,  may now depend on information and documents that are generally not
in their possession and may otherwise be unavailable due to the  passage
of  time  (see generally 21st Mtge. Corp. v Rudman,AD3d, 2022 NY Slip Op
00031, *2-4 (2d Dept 2022) (Barron, J., dissenting)). We note, it is our
intent that the estoppel set forth in CPLR 213 (4) (a) and (b) shall not
preclude a mortgage foreclosure defendant or RPAPL Article 15  plaintiff
from  successfully arguing expiration of the limitations period on other
or separate grounds (e.g., Aber, 195 AD3d at 686).

 
CPLR 3217

CPLR  3217 (e) is expressly intended to overrule Engel. The new subdivi-
sion clarifies that unless made in strict compliance  with  the  General
Obligations  Law,  the  mere  voluntary dismissal or discontinuance of a
foreclosure action, whether by motion, order,  stipulation,  or  notice,
cannot waive, postpone, cancel, toll, extend, revive, or reset the stat-
ute  of limitations period, nor the expiration thereof (e.g., Petito, 85
NY2d at 8-9). The phrase "unless expressly prescribed by statute" is  in
recognition  of  the  fact  that  existing New York statutory law allows
parties a strictly defined means of extending a statute  of  limitations
after  a  claim predicated on non-payment of a mortgage debt has accrued
(Gen. Oblig. Law 17-105).

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None to the State.

 
EFFECTIVE DATE:
This act, which seeks to clarify and codify existing law and is remedial
in nature, shall take effect immediately and shall apply to all  actions
commenced on an instrument described under CPLR 213 (4) in which a final
judgment of foreclosure and sale has not been enforced.
(1) We note, while constitutional constraints concerning preservation of
issues  in  Engel clearly limited the scope of the Court's judicial rule
making authority (37 NY3d at 36-37 (Wilson, J., concurring; Rivera,  J.,
dissenting, in part)), the Legislature suffers no such constraint.
(2)  The  language  "unless  expressly  prescribed  by  statute," is not
intended to be a "loophole" in the subdivision and should not be  viewed
or  treated  as  such. Rather, the language represents the legislature's
recognition of certain unique situations where the law, in  effect,  may
technically  provide  a  party  with  the  unilateral ability to toll or
extend the time prescribed by law to commence an action and to interpose
a claim (see Gen. Oblig. Law 17-105, 17-107; see also 11 USC 362  (auto-
matic bankruptcy stay tolls statutes of limitation as per the unilateral
act by the debtor of filing the petition).
(3)  Although  it  appears that the standard Fannie Mae/Freddie Mac Form
3033 mortgage instrument expressly  permits  a  borrower  the  right  to
de-accelerate  a loan, via reinstatement (Bank of NY Mellon v Dieudonne,
171 AD3d 34, 39, 40 (2d Dept 2019), lv denied 34 NY3d  910  (2020)),  it
does  not  permit  the lender to exercise such unilateral action, either
expressly or impliedly (Khemraj, 72 Misc 3d 1206(A),  2021  NY  Slip  Op
50656(U)  at  *3-4;  cf  id., Index No. 50068/2016, at NYSCEF Doc No. 62
(court held the form 3033 mortgage underlying the action did not provide
the plaintiff with unilateral authority to "de-accelerate"  the  loan)),
and  longstanding  principles  of  New York jurisprudence, including the
maxim expresslo unius est exclusio alterius, disallow such a right to be
read into the mortgage contract (see e.g.,  Quadrant  Structured  Prods.
Co.,  Ltd.  v  Vertin,  23 NY3d 549, 560 (2014); citing In re Ore Cargo,
Inc., 544 F2d 80, 82 (2d Cir 1976); accord Two Guys from Harrison-N.Y. v
S.F.R. Realty Assoc., 63 NY2d 396, 403-404 (1984); citing Woodmere Acad-
emy v Steinberg, 41 NY2d 746, 750 (1977); see also Prudence Co. v 160 W.
Seventy--Third St. Corp., 260 NY 205, 212  (1932)  ("(I)n  no  event  is
. . .  the  mortgagee  accorded  rights  beyond the stipulati ons of the
mortgage")). We note, the primary purpose of CPLR 203 (h) is to  clarify
that  upon  accrual  of a cause of action, the aggrieved party - meaning
the party with the right to commence an action and interpose a  claim  -
may  not unilaterally extend its own time to assert its own claim. Thus,
the subdivision has no adverse impact on  a  borrower's  contractual  or
statutory  right  to  "reinstate"  a  mortgage loan (i.e., pay the total
amount of his or her arrears and thereby bring the mortgage loan back to
a regular monthly installment contract), which effectively  "de-acceler-
ates"  a/lc/a  "de-accrues"  a  lender's cause of action to sue upon the
prior, but subsequently  cured,  mortgage  loan  default(s)  (see  e.g.,
Fannie  Mae/Freddie  Mac  Form  3033  mortgage  19; cf. Gen. Oblig. Law
17-105, 17-107).   Accordingly, "de-accrual"  under  the  General  Obli-
gations  Law  (e.g.,  §§  17-105,  17-107  (the exercise of a borrower's
contractual right to reinstate a mortgage loan or a borrower's execution
of a properly drafted loan modification agreement)), constitutes permis-
sive means "expressly prescribed by statute" (CPLR 203(h)).
4 We note, for the purposes of the interposition of a  claim  against  a
defendant joined to an action after its commencement (CPLR 203(c), (f)),
the additional defendant's unity of interest with the original defendant
must  have  existed  from  the  time  of  the commencement of the action
through the interposition of the claim against the additional  defendant
(see  Jones  v  Bill, 10 NY3d 550, 554 (2008); Nevling v Chrysler Corp.,
206 AD2d 221, 224-226 (2d Dept 1994)); Rols Capital Co. v.  Beeten,  264
AD2d  724  (2d  Dept  1999);  Filigree  Films Pension Plan v. CBC Realty
Corp., 229 AD2d 862 (3d Dept 1996)).
5 Reliance on a motion made by the foreclosing plaintiff or  its  prede-
cessor,  or  by  the RPAPL Article 15 defendant or its predecessor (CPLR
213(4)(a), (b)), for dismissal or discontinuance of its  own  action  on
invalid  acceleration  grounds  would be impermissive under this section
because, if granted, such a unilateral act  could  result,  in  form  or
effect,  to an unlawful resetting of the accrual of the cause of action,
or otherwise to an unlawful extension of the  limitations  period  (CPLR
201; 203(h); 3217(e)).
6  See  generally  Gleason  v  Michael  Vee,  Ltd., 96 NY2d 117, 122-123
(2001)."

• 
  

MENTAL HEALTH LAW ARTICLE 82

Enacted in July 2022, it takes effect 90 days after the adoption of the appropriate regulations. 

The purpose: "To add Article 82 to the Mental Hygiene Law, identifying Supported Decision Making as a less restrictive alternative to guardianship and to create additional support and autonomy to individuals needing assistance to make decisions for themselves. Creates obligations and corresponding immunity from liability for third patties in order to effectuate supported decisions made with a Supported Decision Making Agreement. Allows regulations to be promulgated by state agencies serving a myriad of individuals who may benefit by less restrictive support, such as the Office for People With Developmental Disabilities, Office of Children and Family Services and the Office for the Aging."

A PROPOSAL BY UNIFORM LAW COMMISSION

So far only enacted in two states, Washington and Utah. There are many pros and cons to this proposal.

"The Uniform Unregulated Child Custody Transfer Act provides states with a uniform legal framework to prohibit unregulated child custody transfers.  An unregulated child custody transfer is a transfer by a parent or guardian of a child or an individual with whom a child has been placed for adoption that is performed without state agency or court oversight that assures the new custodian is safe and appropriate for the child. The act also requires child-placing agencies to provide prospective adoptive parents with important information and guidance regarding adoptions that have a heightened degree of risk for a disruption or dissolution. 

Article 2 of the act prohibits a parent from transferring custody of a child to someone beyond family members and other specified categories of individuals if the parent intends to abandon the parent’s rights and responsibilities regarding the child. The prohibition applies to a parent or guardian with custody of a child as well as to an individual with whom a child has been placed for adoption. It also prohibits solicitation and advertising for the purpose of transferring or finding a child to transfer in violation of the article, or to facilitate such a transfer. The article provides the child protection agency with authority to perform home visits to investigate probable violations of the act and to take appropriate action to protect the child.  It further provides law enforcement authority with the power to investigate and take legal action to enforce the article. 

Article 3 of the act deals with the adoption of children whose physical or psychological health or other circumstances at the time of a proposed placement for adoption would predict that the adoptive parent might face challenges in caring for the child. It assures that prospective adoptive parents are informed about, and are given instruction on dealing with, the physical and psychological health of the child as well as other issues. It requires a child-placing agency through which an adoption is facilitated to provide the prospective adoptive parent with: (1) general information about adopting a child with certain health or behavioral issues; (2) specific information about the physical and psychological health of their prospective adoptive child; (3) guidance and instruction on dealing with the challenges that may present themselves in rearing the child placed with them; and (4) information on accessing certain post-placement and post-adoption financial assistance and support services to help preserve the adoption.  It provides law enforcement authority with the power to investigate an alleged violation of the article by a child-placing agency and to commence action to enforce the article. It also provides the state licensing agency with authority to suspend or revoke the license of a child-placing agency that has violated the article."

RELIGIOUS CUSTOMS AND CHILD CUSTODY

G.B. v. B.B., Date filed: 2022-10-20, Court: Supreme Court, Kings, Judge: Justice Delores J. Thomas, Case Number: 52419/10:

"Defendant, in her cross motion, seeks an order enforcing paragraphs 6 (Q) and 6 (R) of the Stipulation of Settlement) by ordering plaintiff to use all reasonable efforts to ensure that the children’s appearance and conduct comply with the religious requirements of their Chasidic Orthodox Jewish upbringing and their schools while in plaintiff’s physical custody. The 2017 Amendment provides that the Stipulation of Settlement shall remain in force except to the extent that any provision therein conflicts with it. No provision in the 2017 Amendment conflicts with paragraphs 6 (Q) or 6 (R) of the Stipulation of Settlement.

Paragraph 6 (Q) of the Stipulation of Settlement provides that “[t]he Children shall continue to be raised in accordance with the strict tenets of Chasidic Orthodox Judaism.” Paragraph 6 (R) of the Stipulation of Settlement provides that plaintiff and defendant “shall ensure that the Children dress in the same style of weekday, Shabbos, and Yom Tov attire as that which is worn by the Husband and Wife’s families, to wit, clothing worn by Chasidic Orthodox Jewish males.”
Defendant claims that at times, plaintiff only took the children to the Shabbos morning services, but rarely on Friday night or for the afternoon and evening services on Shabbos. She also claims that plaintiff has discouraged the children from wearing their traditional Chasidic clothing for Shabbos, and, instead, encouraged them to stay home in their pajamas.

Plaintiff states that he raises the children as Chasidic, and that the children are very happy with the religious observance at his home. Plaintiff asserts that defendant insisted that the older son dress in a style that is contrary to the Satmar tradition, but instead comports with her husband’s style of dress. Plaintiff attests that he never discouraged the children from wearing their traditional Chasidic clothing for Shabbos. Plaintiff states that he only did not take the children to synagogue when it was unsafe at the height of the COVID-19 pandemic.

“New York courts will enforce clauses in custody agreements that provide for a specific religious upbringing for the children where the agreement is in the best interests of the children” (Cohen v. Cohen, 177 AD3d 848, 853 [2d Dept 2019], appeal dismissed 35 NY3d 947 [2020]). Notably, it is unconstitutional to direct plaintiff himself to comply with the cultural norms of Chasidic Judaism during his periods of parental access (see Weichman v. Weichman, 199 AD3d 865, 867 [2d Dept 2021]; Cohen v. Cohen, 182 AD3d 545, 546 [2d Dept 2020]). While defendant’s husband’s practice of Chasidic Judaism may be more rigorous and stringent than that of plaintiff, plaintiff is providing the children with a Chasidic Jewish upbringing in compliance with the Stipulation of Settlement. The court directs that plaintiff continue to comply with paragraph 6 (Q) and paragraph 6 (R) of the Stipulation of Settlement."

NEW RULES ON FORENSICS

Recently signed into law is Assembly Bill A2375C, 2021-2022 Legislative Session, which amends DRL 240(1), effective June 21, 2023, and will then require an appointed forensic custody evaluator to be a psychologist, social worker or psychiatrist, and to complete biennial domestic violence training in order to qualify for the appointment.  The act also adds a new paragraph (o) for NY Exec 575 outlining the required domestic violence training. 

A GUARDIAN CAN PURSUE AN ANNULMENT

MATTER OF LOEW, 2022 NY Slip Op 6436 - NY: Appellate Div., 1st Dept. 2022:

"Marriage is a civil contract between two wedded individuals, and among the powers of an article 81 guardian is the power to manage the IP's property, including contracts. Where an article 81 guardian has been appointed for an IP and the individual is found to have been incapable of understanding the nature, effect, and consequences of the marriage, annulment of the marriage is an available remedy for the guardian to pursue (Mental Hygiene Law § 81.29 [d]; Matter of Kaminester v Foldes, 51 AD3d 528, 529 [1st Dept 2008], lv dismissed and denied 11 NY3d 781 [2008])."