ACTORS AND MANAGERS AND THE BREAKUP

Like a divorce, the breakup between talent and management can lead to litigation.

Roth & Assoc. East Inc. v. Kim, Date filed: 2022-03-28, Court: Supreme Court, New York, Judge: Justice Nancy Bannon, Case Number: 653893/2019:

"ORDER ON MOTION In this action stating claims sounding in breach of contract, quantum meruit, and unjust enrichment, and seeking to recover attorney’s fees, the plaintiff, which self-describes as a “talent management company,” seeks to recover as a commission 15 percent of the earnings of the defendant, an actor and former client of the plaintiff, for work the defendant performed in productions after the defendant terminated the plaintiff as his manager. The defendant now moves pursuant to CPLR 3212 for summary judgment dismissing the complaint in its entirety. The plaintiff opposes the motion. The motion is granted. It is well settled that the movant on a summary judgment motion “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” See Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The motion must be supported by evidence in admissible form (see Zuckerman v. City of New York, 49 NY2d 557 [1980]), and the pleadings and other proof such as affidavits, depositions, and written admissions. See CPLR 3212. The “facts must be viewed in the light most favorable to the non-moving party.” Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012) (internal quotation marks and citation omitted). Once the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact. See id., citing Alvarez v. Prospect Hosp., 68 NY2d 320 (1986).

In support of his motion, the defendant submits, inter alia, the original May 1, 2012, contract between the parties; the second contract between the parties dated May 1, 2014; a series of written agreements between Showtime Pictures Development Company and the defendant engaging the defendant in the role of Ben Kim in the television series “Billions” over the course of six seasons, between 2015 and 2021; email correspondence between the parties; the plaintiff’s itemization of commissions paid to it by the defendant between 2015 and 2019; the deposition transcript of the plaintiff’s principal, Wayne Scherzer; and an affidavit of the defendant. In opposition to the defendant’s motion, the plaintiff submits a brief affidavit of Wayne Scherzer and an attorney’s affirmation.

The defendant’s submissions establish that the plaintiff, a single-person talent representative, took the defendant on as a client in or about 2010 or 2011, when the defendant was 23 years old, after meeting the defendant at a Manhattan restaurant where the defendant was then employed. The parties entered into a written agreement for a term of one year, beginning May 1, 2012, whereby the plaintiff agreed to promote and advance the defendant’s acting career in exchange for a 15 percent commission on the defendant’s earnings, with certain exceptions. The initial one-year term (the initial term) was subject to a single, automatic one-year extension. After the expiration of the term of the contract, the defendant was to continue to pay the plaintiff a commission for up to three additional years on contracts, commitments, and agreements pertaining to “projects begun and[/]or completed by [the defendant], or result[ing] from efforts of [the plaintiff] on behalf of [the defendant]” during the initial term or extension.

In August 2014, after the expiration of the parties’ first contract, the parties executed a second, substantively identical contract for a term commencing on May 1, 2014. On January 28, 2015, the defendant was cast in the series premiere of Billions. The defendant worked on Billions for its first three seasons pursuant to contracts negotiated by the plaintiff on the defendant’s behalf, notwithstanding that the term of the parties’ second contract expired on April 30, 2016. The contracts were for single episodes and provided for no guarantee of future work or screen credit as a guest star. On June 11, 2018, the defendant terminated the plaintiff’s representation. Shortly thereafter, the defendant’s new representation negotiated a new contract for the defendant’s performance in season four of Billions with significantly better terms, including superior compensation, a guaranteed minimum of 12 episodes, and “guest star” credit. The defendant continued paying the plaintiff a commission, including all income and residuals received for seasons one through three of Billions, through May 2019.

To successfully prosecute a cause of action to recover damages for breach of contract, the plaintiff is required to establish (1) the existence of a contract, (2) the plaintiff’s performance under the contract; (3) the defendant’s breach of that contract, and (4) resulting damages. See Flomenbaum v. New York Univ., 71 AD3d 80 (1st Dept. 2009). Here, the defendant demonstrates that he did not breach the terms of any written or implied agreement with the plaintiff. The latest written contract between the parties provided that the defendant was to pay the plaintiff a commission for up to three years after the expiration of the initial term and automatic extension. In contrast, nowhere in the written contracts or elsewhere did the parties agree that the defendant’s obligation was to endure for three years after the plaintiff’s termination from its management role. Accordingly, the defendant’s obligations ceased on or about April 30, 2019. Since the plaintiff does not identify any payments the defendant failed to make through that date, its breach of contract claim fails.

Moreover, even if the court were to credit the plaintiff’s strained argument in opposition that the parties’ course of conduct indicated an intent to extend the initial term beyond what was allowable in the written instrument, there is still no triable issue as to the defendant’s liability. The defendant’s submissions establish that the work the defendant performed on Billions after June 11, 2018, was done exclusively pursuant to contracts negotiated by new management. Thus, the defendant’s earnings for his work on later seasons of Billions were not paid under an agreement pertaining to a project he began during any extended term or resulting from the plaintiff’s efforts prior to the expiration of such term, within the meaning of the parties’ agreement.

The plaintiff’s conclusory assertions to the contrary do not create a triable issue of fact in the face of the clear language of the contract. Additionally, the plaintiff’s proposed reading is at odds with the parties’ reasonable expectations insofar as it would unfairly subject the defendant to duplicative payment obligations towards both his former and current manager, even though only one negotiated the work arrangement. See, e.g., Peter Lampack Agency, Inc. v. Grimes, 93 AD3d 430, 430-31 (1st Dept. 2012) (rejecting as unreasonable an interpretation of a literary agency contract that would permit the agent to recover commission on all future extensions of a book contract, even though the agent had no role in negotiating such extensions, because “[t]his would be an absurd result”). In light of the foregoing, the plaintiff’s breach of contract claim is dismissed.

As to the plaintiff’s quasi-contract claims, in order to prevail the plaintiff is required to demonstrate that (i) the defendant was enriched, (ii) at the plaintiff’s expense, and (iii) “it is against equity and good conscience to permit the [defendant] to retain what is sought to be recovered.” Paramount Film Distrib. Corp. v. State, 30 NY2d 415, 421 (1972) (citations omitted). However, as a general rule, where a plaintiff seeks to recover under an express agreement, no cause of action lies to recover for unjust enrichment or quantum meruit. See Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382 (1987); JDF Realty, Inc. v. Sartiano, 93 AD3d 410 (1st Dept. 2012); Steven Pevner, Inc. v. Ensler, 309 AD2d 722 (1st Dept. 2003). The plaintiff’s claims sounding in unjust enrichment and quantum meruit are duplicative of the plaintiff’s breach of contract claim and subject to dismissal for that reason. Additionally, the plaintiff, who ceased working for the defendant in 2018, identifies no benefit it bestowed upon the defendant for which it was not duly compensated.

Finally, the plaintiff’s cause of action seeking attorney’s fees is subject to dismissal in light of the dismissal of all of its substantive causes of action as well as the absence of any contractual or statutory provision entitling the plaintiff to such fees.

Since dismissal of the complaint is warranted on the above facts, the court does not reach the defendant’s arguments related to the plaintiff’s proper licensure."

MORE ON ERAP AND STAYS

Kristiansen v. SERATING, 2022 NY Slip Op 22097 - NY: Dist. Court, Suffolk County, 3rd Dist. April 7, 2022:

"C. STEPHEN HACKELING, J.

The Court scheduled a hearing to ascertain the applicability of any statutory stays to the above captioned summary eviction proceeding. If none existed, the matter was to proceed to trial on the merits. At the hearing held March 12, 2022, the following facts were not disputed:

Uncontested Facts

1. The respondent tenants, Lance Serating and Debra Serating (hereafter "the Seratings" or "tenants") stopped paying rent in February 2020, after taking residence in the subject premises (64 Harrison Drive, East Northport, New York 11731) pursuant to a written 2 year lease dated May 7, 2019, which expired upon its own terms and now exists as a month to month tenancy at $3,200.00 per month.

2. There exists $60,800.00 (19 months) of rental arrears running through March, 2022.

3. The landlord Ivor Kristiansen (hereafter "landlord"), commenced this holdover action pursuant to petition dated April 2, 2021 after prior proper service of a ninety (90) day notice of lease termination.

4. The Seratings filed an application for rental relief under New York's Emergency Rental Assistance Program, L.2021, C. 417, Part A § 4. (hereafter, "ERAP") on January 14, 2022. The status of the ERAP application on this date was "not completed" "pending Documents".

5. The landlord does not want any ERAP funding, and refuses to participate in the tenant's application.

Disputed Facts

The lone disputed fact is whether the Seratings are actively prosecuting their ERAP petition in "good faith". See, Barton v. Bixler, 2022 Slip Op 50228(U) (Dist. Ct. Suff. Co. 2022) for this Court's opinion allowing for same. At the eligibility hearing Mr. Serating's testimony established the following:

a. Mr. Serating uploaded seven (7) documents including:

Social Security card number

Photo I.D.

Bank Statements

Tax Returns

Confirmation numbers were given by the ERAP Administrating Agency for said documents.

B. Mr. Serating initially had difficulty uploading said documents on January 17, 2022, as a result of a problem with utility charges, but gave up on same (the utility charges) and finalized the application on or about March 16, 2022.

C. As of March 17, 2022, the Seratings' ERAP application is marked "pending" on its website.

Discussion

The Court has previously opined that it has concurrent authority to determine ERAP "eligibility". See, Abuelafiya v. Orena, 73 Misc 3d 576 (Dist. Ct. Suf. Co. 2021). Other Courts have similarly come to said conclusion at least to the extent that an ERAP "tenant must actively pursue ...his application in "good faith". See, Hudson Ave. Housing Assoc., LLC v. Howard, 2022 WL 829785 (Civ. Ct. War. Co. 2022).

The landlord, without any affirmative proof other than cross examination, asserts that the failure to complete the application until March 11-16, 2022 evidences a failure to "actively pursue" same. As the burden of proof on this issue is upon the landlord; the tenant's testimony by itself is prima facie sufficient to establish the ERAP application as being pursued in good faith.

The more problematic issue is the landlord's contention that he is refusing ERAP participation and payment. At least two sister Courts have indirectly (in the nature of dicta) determined that a landlord may refuse ERAP participation, thereby circumventing any stay and are allowed to move forward with an eviction. See, Actie v. Gregory, 2022 Slip Op 50117(U) 74 Misc 3d 1213 (A) (Civ. Ct. Kings Co., 2022); see also, Carousel Properties v. Valle, 74 Misc 3d 1217(A) (Suff. Co. Dist. Co. 2022).

It is also this Court's opinion that landlords can refuse participation in ERAP. In that instance ERAP has the ability to make an alternative award to the tenant. In this instance, the tenant continues to be protected by a statutory stay for the "covered arrears" which can not exceed fifteen (15) months. Such an award contemplates that the tenant is then responsible to settle both covered arrears as well as non covered rent obligations to the landlord. In this case the arrears are nineteen (19) months x $3,200.00 which totals $60, 800.00. ERAP's maximum award is fifteen (15) months or $48,000.00. As such $12,800.00 is presently due for which no government assistance is available.

Accordingly, the Court continues the stay of the landlord's pursuit of $48,000.00 representing ERAP funds and vacates the ERAP stay to require the tenant to pay $12,800.00 of uncovered arrears on or before May 1, 2022. If said sum is paid no judgment or warrant of eviction shall issue. If the tenant receives any ERAP funds and fails to pay same to the landlord, he shall be entitled to submit an application for an amended judgment and a warrant of eviction. The landlord may seek to hold the tenant responsible for any future post May 1, 2022 arrears via the commencement of a new petition."

EFFECTIVE APRIL 30, 2022 JUDGMENT RATE

On December 31, 2021, New York Governor Hochul signed into law S5724-A which reduces the annual rate of interest on judgments arising out of a consumer debt where the defendant is a natural person from 9% to 2%. 

"BILL NUMBER: S5724A

SPONSOR: THOMAS
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to the
rate of interest applicable to money judgments arising out of consumer
debt

 
PURPOSE OR GENERAL IDEA OF BILL:

To reduce the judgment interest rate on consumer debt.

 
SUMMARY OF PROVISIONS:

Section 1 amends section 5004 of the civil practice law and rules.

Subdivision (a) states that the interest rate on judgments arising from
consumer debt shall two per centum per annum (1) for any judgments
entered on or after the effective date of this bill and (2) on any part
of post-entry interest on a judgment entered before the effective date

of this bill that is unpaid as of the effective date.

Subdivision (b) defines "consumer debt." Consumer debt consists of any
obligation or alleged obligation of any natural person to pay money that
arose out of a transaction in which the money, property, insurance or
services which are the subject of the transaction are primarily for
personal, family or household purposes, including but not limited to
consumer credit transactions as defined in section 105 of the civil
practice law and rules.

Subdivision (c) states that the new interest rate will not affect any
amounts of money that have been paid toward a judgment, accrued interest
or fees before this act's effective date. The subdivision further states
that a judgment creditor or sheriff cannot be required to refund or
return such amounts to judgment debtors and cannot be required to apply
such amounts to satisfy any part of the money judgment other than fees
or interest upon judgment pursuant to section 5003 of the civil practice
law and rules.

Subdivision (d) adds a severability clause.

Section 2 amends section 3215 of the civil practice law and rules. The
amendment to subdivision (f) provides that an application for a default
judgment should include, if applicable, a statement that the consumer
debt interest rate applies; and subdivision (i) provides that when
default is sought for failure to comply with a stipulation settlement,
the affidavit should include, if applicable, a statement that the
consumer debt interest rate applies.

Section 3 amends section 3218 of the civil practice law and rules. The
amendment to subdivision (1) provides that when judgment by confession
is sought, it should include, if applicable, a statement that the
consumer debt interest rate applies.

Section 4 amends section 5230 of the civil practice law and rules. The
amendment to subdivision (a) provides that, if applicable, an execution
should include the applicable interest rate if the consumer debt inter-
est rate applies; and further provides that if the applicable interest
rate changes while an execution is ongoing, the judgment creditor must
issue an amended execution within sixty days of the effective date of
the act and that such amended execution is effective as of the date of
the rate change. The amendment to subdivision (b) provides that, if the
applicable interest rate changes while an execution is ongoing, the
clerk of the court in which the judgment was first docketed or the
attorney for the judgment creditor shall be authorized to issue an
amended execution to the sheriff and shall issue such amended execution
within sixty days of the effective date of the act, effective as of the
date of the rate change.

Section 5 amends section 5231 of the civil practice law and rules. The
amendment to subdivision (a) provides that, if a judgment creditor
issues an amended execution pursuant to section five hundred and thirty
because the applicable interest rate changes, the income execution need
not provide a notice to the judgment debtor that if he or she does not
commence payments, the execution will be served on the person or entity
from whom he or she is or will receive money.  The amendment to subdivi-
sion (d) provides that if the judgment creditor issues an amended
execution because the applicable interest rate changes, the sheriff
shall serve a copy of the amended income execution within forty-five
days of being delivered to the sheriff, not twenty. The amendment to
subsection (j) relates to priority and provides that if the interest
rate changes while an execution is ongoing, the amended execution shall
retain the priority of the ongoing execution. The amendment to
subsection (k) provides that, if a judgment creditor issues an amended
execution because the applicable interest rate changes, any money
collected in excess of the judgment amount shall be promptly returned to
the judgment debtor.

Section 6 amends section 5222 of the civil practice law and rules. The
amendment to subdivision (a) provides that, if the applicable interest
rate changes while a restraint is in effect, the judgment creditor shall
issue an amended restraining notice, and include the date as of which
the new interest rate applies, without leave of court as otherwise
required under subdivision (c) of the section. The amendment to subdivi-
sion (c) provides that, if the applicable interest rate changes while a
restraint is in effect, the judgment creditor shall issue an amended
restraining notice without leave of court.

Section 7 provides the effective date.

 
JUSTIFICATION:

This legislation intends to remedy the hardship placed on a significant
number of New Yorkers by a statutory judgment interest rate that has
long been incommensurate with market interest rates, and which has been
intensified by the COVID-10 pandemic.

Beginning in the early 2000s, due in part to the proliferation of the
debt-buying industry, plaintiffs began to file debt collection lawsuits
en masse against New Yorkers in unprecedented numbers. Over the past 20
years, millions of consumer debt actions have inundated New York State
courts. These lawsuits are notoriously lacking basic information and are
sometimes filed against the wrong people. Compounding the issue, New
York has experienced widespread and well-documented fraud in service of
process, especially in debt collection cases. Thus, significant numbers
of judgments entered not only were obtained without defendants' know-
ledge, but also were otherwise legally faulty. The legislature finds
that the confluence of these systemic failures disproportionately harm
communities of color, increasing and entrenching racial inequity.

The nine per centum per annum statutory judgment interest rate for judg-
ments against consumers has for too long been incongruent with market
interest rates. The rate has not been amended since 1981 when the aver-
age rate for the one-year United States Treasury bill (i.e., One Year
Treasury Constant Maturity Yield) was over 14 percent. From 2000 to
2020, the average rate was under 2 percent. The nine percent rate
contributes to the growing unpaid judgment amounts entered during the
height of the mass filings of debt collection lawsuits and has resulted
in default judgments throughout the 2000s. It would be unjust and
contrary to public policy to allow interest at this inflated and harsh
rate on unpaid amounts for judgments entered in the past. Moreover, the
nine percent rate is significantly out of step with current interest
rates. The legislature finds that it is in the public interest for judg-
ments in consumer debt collection lawsuits to accrue interest at a flat
rate of two percent, which is consistent with the average interest rates
for the one-year United States Treasury bill over the last twenty years
and which represents a fairer rate for New Yorkers, for unpaid amounts
of judgments entered in the past, and for judgments going forward.

The long-standing need for this change in law has been exacerbated by
the COVID19 pandemic, which has imposed unprecedented financial pressure
on consumers and disproportionately impacted lower- and middle-income
New Yorkers. In March 2020, a record was set for the largest monthly
increase in unemployment in New York state. With little or no income,
many consumers are already unable to pay their bills, including rent,
medical bills, and car loans, or to continue paying consumer debt judg-
ments. Many of the debts stemming from the COVID-19 pandemic will even-
tually be bought by debt collectors who will use extraordinary means to
seek legal judgments. The long-lasting economic effects of these meas-
ures are deeply concerning and it is in the interest of the State to
protect vulnerable New Yorkers from bank levies and wage garnishments to
pay unjustly high interest amounts that originate in State law on judg-
ments for consumer debts. New York state has an opportunity to protect
New Yorkers from further financial hardship - with no financial outlay
by the state - by lowering the interest rate that defendants pay on
consumer judgments and accrued claims.

This legislation intends that the rate of two per centum per annum shall
apply prospectively to consumer debt judgments as of the bill's effec-
tive date; and shall apply retrospectively to consumer debt judgments
entered prior to this bill's effective date that are not yet fully paid
and satisfied as of the effective date. This is a responsive reform to
the aforementioned findings, including the mass filings resulting in
default judgments and the effects of the COVID-19 crisis and its
disproportionate impact on lower- and middle-income communities.

It is recognized that in recent years there have been legislative
proposals to lower the interest rate of all types of judgments.  Howev-
er, analogous to a number of other consumer protections enacted over the
years, the instant narrowly drawn proposal recognizes the peculiarly
pernicious effects upon New Yorkers of burgeoning consumer debt both
past and present.

 
PRIOR LEGISLATIVE HISTORY:
2020: S.7946-B (Thomas) / A.10479 (Weinstein) - Committed to Judiciary

 
FISCAL IMPLICATIONS:

None noted to the State."

WRONGFUL LIFE CLAIM OR DAMAGES DUE TO MALPRACTICE

Greenberg v. MONTEFIORE NEW ROCHELLE HOSPITAL, 2022 NY Slip Op 2194 - NY: Appellate Div., 1st Dept. 2022:

"On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), courts treat the allegations in the complaint as true (Leon v Martinez, 84 NY2d 83, 87 [1994]). The relevant facts alleged in the complaint are as follows. On December 21, 2011, plaintiff's husband (decedent) executed a health care proxy and a living will (Public Health Law § 2981; 10 NYCRR 400.21). The living will provides that, if decedent has an "incurable or irreversible mental or physical condition with no reasonable expectation of recovery" or is "a) in a terminal condition; b) permanently unconscious; or c) if . . . conscious but ha[s] irreversible brain damage and will never regain the ability to make decisions and express [his] wishes," then he directed that his treatment be limited to measures to keep him comfortable and relieve pain, and specified that he did not consent to cardiac resuscitation, mechanical respiration, tube feeding, or antibiotics. The health care proxy and living will both identify plaintiff as decedent's health care agent to act in accordance with decedent's wishes in the event that he was unable to make his own health care decisions, with their two adult sons designated to act as substitute health care agents. Both documents were properly witnessed and comply with the applicable statutory requirements.

In 2016, decedent was 63 years old, suffering from advanced Alzheimer's disease, residing in a residential treatment facility, and unable to recognize his wife and children or communicate in any meaningful manner. On November 3, 2016, he was admitted to defendant Montefiore New Rochelle Hospital after being found lying on the floor at his residential facility. Hospital staff had copies of decedent's living will and health care proxy. Hospital staff also provided decedent's son, the only health care agent present at the hospital, with a Medical Order for Life-Sustaining Treatment (MOLST) form, which he completed and executed. The MOLST provided that decedent was to receive comfort measures only, and that decedent was not to receive intravenous fluids or antibiotics.

The physician who first evaluated decedent at the hospital determined that he was suffering from sepsis. She noted in decedent's chart under "Advance directives," "DNR; DNI; No tube feeds; No antibiotics; No IV fluids . . . (refer to MOLST form)." The examining physician contacted plaintiff by telephone, who confirmed that these directives were correct and also verbally directed that decedent was not to receive interventional medical treatment, including antibiotics, and that he was only to be provided with measures to alleviate pain, so that his suffering would end as quickly as possible.

Shortly after the first physician completed her examination, the attending physician, defendant Dr. Escobar, examined decedent. Dr. Escobar noted that decedent's hospital record indicated that he was not to receive antibiotics or intravenous fluids, and that there was a MOLST in place, executed just the day before. Nevertheless, on November 4, 2016, Dr. Escobar directed that decedent be treated with intravenous antibiotics and ordered a brain CT, chest X ray, ECG, blood tests, and the administration of other medications that were not necessary to alleviate pain.

Plaintiff has retained an expert who opines that, had decedent not received treatment contrary to decedent's wishes and his health care agents' instructions, he likely would have died from sepsis within a few days. Instead, decedent endured pain and suffering over a period of approximately 30 days, until he died on December 5, 2016.

Plaintiff filed this medical malpractice action on January 9, 2019. The complaint alleges that defendants departed from the standard of care by failing to abide by decedent's wishes expressed in his advance directives, the directives of his health care agents, and the MOLST, and, as a result, decedent endured pain and suffering for over a month.

On October 21, 2020, defendants moved to dismiss the complaint for failure to state a cause of action. Their sole argument before the motion court was that plaintiff's claim is one for "wrongful life," and is thus disallowed under Cronin v Jamaica Hosp. Med. Ctr. (60 AD3d 803 [2d Dept 2009], lv granted 12 NY3d 715 [2009], appeal withdrawn 13 NY3d 857 [2009]). As there was no binding precedent from this Department, the motion court found that it was bound to follow Cronin (see D'Alessandro v Carro, 123 AD3d 1, 6 [1st Dept 2014]) and granted the motion. We now reverse.

At the outset, I note that, in Cronin, it appears that plaintiff sought damages based on a claim "that the defendant wrongfully prolonged the decedent's life by resuscitating him against the express instructions of the decedent and his family" (Cronin, 60 AD3d at 804). In contrast, here, plaintiff seeks damages for decedent's pain and suffering, which the complaint alleges was the result of medical malpractice in that defendants breached the standard of care by administering treatments without consent and in direct contravention of decedent's wishes expressed in his advance directives as reaffirmed by his health care agents and in the MOLST. Defendants do not address these allegations at all, arguing only that plaintiff asserts a "wrongful life" claim like the one asserted in Cronin. Since I find that plaintiff has adequately stated a medical malpractice claim that is not barred by Cronin, defendants are not entitled to dismissal of the complaint.

In any event, this Court is not bound by Cronin (see D'Alessandro, 123 AD3d at 6), and I find that the reasoning in that case, and in the Court of Appeals cases on which it relies, do not apply here. The award of summary judgment to defendant in Cronin was based on the Second Department's determination that "the status of being alive does not constitute an injury in New York" (60 AD3d at 804), based on its citation to Alquijay v St. Luke's-Roosevelt Hosp. Ctr. (63 NY2d 978, 979 [1984]) and Becker v Schwartz (46 NY2d 401, 412 [1978]). In each of those cases, the Court of Appeals dismissed causes of action, made on behalf of infants, which alleged that, "had plaintiffs been properly advised by defendants of the risks of abnormality, their infants would never have been born" (Becker, 46 NY2d 401, 410; see also Alquijay, 63 NY2d at 979). The holdings in Becker and Alquijay rely on two premises, neither of which is applicable here.

First, the Court of Appeals stated that there is no precedent recognizing "the fundamental right of a child to be born as a whole, functional human being. . . ." (Becker, 46 NY2d at 411 [internal quotation marks omitted]; see also Alquijay, 63 NY2d at 979). However, in contrast, a competent adult's right to refuse medical treatment, even where refusal may result in death, is well established by case law (see Cruzan v Director, Missouri Dept. of Health, 497 US 261, 281 [1990]; Myers v Schneiderman, 30 NY3d 1, 14 [2017]) and statute (see Public Health Law article 29-C [health care proxies]; Public Health Law article 29-CCC [non hospital orders not to resuscitate]; 10 NYCRR 400.21 [advance directives]).

Second, the Court found that the type of claim at issue in Becker and Alquijay is unsuited to judicial determination, since "a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence" (Becker, 46 NY2d at 412; see also Alquijay, 63 NY2d at 979) and because "[w]hether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians" (Becker, 46 NY2d at 411). In contrast, courts can and regularly do determine damages for pain and suffering. Moreover, when a competent adult has executed advance directives specifying the conditions under which they refuse certain life-sustaining treatments, and there has been a medical determination that those conditions are present, no philosophical guesswork is required as to what is best for such a patient. Accordingly, I find that the holdings in Becker and Alquijay do not bar plaintiff from proceeding with the medical malpractice claim set forth in the complaint on the theory that the failure to follow decedent's directives was a departure from the standard of care.

Accordingly, the judgment of the Supreme Court, Bronx County (John R. Higgitt, J.), entered February 16, 2021, dismissing the complaint, and bringing up for review an order, same court and Justice, entered on or about February 9, 2021, which granted defendants Montefiore New Rochelle Hospital and Diego Escobar, M.D.'s CPLR 3211(a)(7) motion to dismiss the complaint, should be reversed, without costs, the judgment vacated, and the appeal from aforesaid order should be dismissed, without costs, as subsumed in the appeal from the judgment.

Judgment, Supreme Court, Bronx County (John R. Higgitt, J.), entered February 16, 2021, dismissing the complaint vacated, the complaint reinstated and the appeal from the order, same court and Justice, entered on or about February 9, 2021, dismissed, without costs, as subsumed in the appeal from the judgment.

Opinion by Gesmer, J. All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT."

SEALING MENTAL HEALTH RECORDS OF INVOLUNTARY COMMITMENT

Generally, pursuant to an application made under Mental Hygiene Law 33.14, a court may order that the petitioner's involuntary mental illness records be sealed, subject to such limitations or exceptions as the court may impose, upon a finding that:

"a. the petitioner was illegally detained by a facility by reason of fraud, error or falsified documents, and the records pertain to such illegal detention; or

b. the petitioner has demonstrated by competent medical evidence that he is not currently suffering from a mental illness, has not for a period of three years received inpatient services for the treatment of a mental illness, and the interests of the petitioner and society would best be served by sealing the petitioner's records.  It shall be presumed that it would be in the best interests of the petitioner and society to seal any record of a petitioner's receipt of services for the treatment of mental illness prior to his sixteenth birthday."

 But this may not always be a simple application. The most recent case I could find on this was MATTER OF GARDNER v. BASSETT MEDICAL CTR., 148 AD 3d 1331 - NY: Appellate Div., 3rd Dept. 2017:

"At all times relevant, petitioner was a student at the State University of New York at Cobleskill in Schoharie County. In early 2013, petitioner sent a text of an apparently concerning nature to one of his professors; although the precise nature of the text is not disclosed in the record,^[1] this incident — according to petitioner — resulted in the involvement of law enforcement and appears to have marked the beginning of a deteriorating relationship between petitioner and the university. At the beginning of the summer of 2013, petitioner moved into a hotel because he "didn't feel safe on the campus" and, in August 2013, suffered an alcohol-induced blackout — during the course of which he sent a text expressing suicidal thoughts.

As a result of his personal experiences on campus, petitioner began to lobby university officials "to insure that when the school police question a student with possible mental health issues that a mental health advocate is present to act as an advocate for the student." To that end, petitioner met with the university's president on November 21, 2013 to discuss this and other issues; also in attendance at that meeting was one of the university's therapists, with whom petitioner previously had spoken "about various personal issues in [his] life." Although the meeting apparently ended without incident, petitioner and the therapist continued to speak in the hallway afterwards, during the course of which — the therapist subsequently reported — petitioner became "agitated, hostile and angry" and "blam[ed] the school for his current problems, depression, poor grades and [the] suicidal episode in August of [that] year." As the conversation continued, petitioner made 1332*1332 reference to "violent acts" — invoking the 1999 shooting incident at Columbine High School in Colorado — and the connection between such violent episodes and "those who snap," stating, "[P]eople wonder why these people snap[;] it's because of the situations like I am going through that cause them to snap and do what they did." Petitioner also made reference to New York's Secure Ammunition and Firearms Enforcement Act, more commonly known as the SAFE Act (L 2013, ch 1), which he previously had characterized as a "new law [that] was aimed to take his weapons away," theorizing that the law "cause[d] people to disengage in therapy, leading to an increase in murder/suicides." Shortly after making that statement, petitioner terminated his counseling relationship with the therapist.

Concerned that petitioner "may have underlying plans for violence," the therapist arranged for an emergency psychiatric admission pursuant to Mental Hygiene Law § 9.39. As a result, petitioner was involuntarily committed to respondent Bassett Medical Center from late in the evening on November 21, 2013 to early in the morning on November 24, 2013.^[2] The stated basis for the emergency admission was paranoid delusions and threats to harm others. During the course of his stay, petitioner was evaluated by a number of medical professionals, including two psychiatrists, and petitioner variously reported and then denied a prior diagnosis of bipolar disorder. According to the psychiatrist who evaluated petitioner upon his admission, although petitioner did not exhibit evidence of any delusions or obsessions and denied "frank suicidal ideation," petitioner expressed "clearly helpless[,] hopeless and depressed thinking." In addition, petitioner's demeanor was described as "tense" ("with paranoid flavor somewhat cryptic at times"), his thought processes were characterized as "overinclusive" and possessing a "more obsessional style," his insight was assessed as "[p]oor with marked use of denial," his judgment was deemed to be "diminished" and his capacity was described as "limited, impacted on by his perceptions with a paranoid flavor." Against the backdrop of petitioner's stated (and then denied) bipolar disorder, concerns that he may also be suffering from an "affective disorder" or "isolated paranoid disorder," the statements made to the university's therapist and petitioner's prior history, the admitting psychiatrist determined that petitioner was in need of involuntary hospitalization "for acute stabilization of [his] psychiatric symptoms" and to safeguard petitioner's safety and the safety of others. Although another psychiatrist 1333*1333 subsequently concluded that she could not extend petitioner's emergency admission beyond the initial 48-hour period (see Mental Hygiene Law § 9.39 [a] [2]), petitioner elected, as noted previously, to voluntarily admit himself for an additional two days.

Thereafter, in March 2015, petitioner commenced this proceeding pursuant to Mental Hygiene Law § 33.14 (a) (1) against the hospital and respondent New York State Office of Mental Health seeking to seal his psychiatric records. Respondents opposed the application. Following a hearing, Supreme Court, relying upon petitioner's hospital records and the affidavits tendered in support of and in opposition to petitioner's application, denied petitioner's sealing request, finding, among other things, that petitioner failed to demonstrate that he was illegally detained. This appeal by petitioner ensued.

We affirm. Pursuant to the provisions of Mental Hygiene Law § 33.14 (a) (1), "[a]ny person who has been admitted to receive inpatient or outpatient services for mental illness may commence a special proceeding ... for an order directing the sealing of those records ... upon a finding that ... the petitioner was illegally detained by a facility by reason of fraud, error or falsified documents, and the records pertain to such illegal detention." Here, petitioner was admitted under the emergency admission procedures set forth in Mental Hygiene Law § 9.39 (a), which permits a hospital director to "retain... as a patient for a period of [15] days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself [or herself] or others." For purposes of the statute, the required likelihood of harm means either a "substantial risk of physical harm to himself [or herself] as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he [or she] is dangerous to himself [or herself], or ... a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a] [1], [2]; see Matter of Rueda v Charmaine D., 17 NY3d 522, 529-530 [2011]). An individual may be admitted under the statute "only if a staff physician of the hospital upon examination of such person finds that such person qualifies under the requirements" of the statute and, as alluded to previously, a person so admitted cannot "be retained for a period of more than [48] hours unless within such period such finding is confirmed after examination by another physician who shall be 1334*1334 a member of the psychiatric staff of the hospital" (Mental Hygiene Law § 9.39 [a] [2]; see Matter of Rueda v Charmaine D., 17 NY3d at 530).

As petitioner does not contend that his involuntary admission was procured by fraud or falsified documents, his application for sealing may succeed only if he can demonstrate that such admission was erroneous. To that end, petitioner tendered his hospital records and the affidavit of John Tanquary, a licensed psychiatrist, who opined that, based upon his October 2014 evaluation of petitioner and a review of petitioner's hospital records, petitioner "did not meet the criteria for involuntary hospitalization ... and should never have been hospitalized against his will." To our analysis, this conclusory and hindsight assessment of petitioner's mental status at the time of his involuntary admission in November 2013 — an assessment that is both predicated in large measure upon petitioner's self-reporting of that event and otherwise minimizes the documented psychiatric symptoms displayed by petitioner upon his admission — falls short of demonstrating that petitioner's hospitalization was in error within the meaning of Mental Hygiene Law § 33.14 (a) (1). At best, Tanquary's affidavit reflects a difference of opinion between the psychiatrist who evaluated petitioner upon his admission and the psychiatrist who evaluated him nearly one year later, and this conflicting medical opinion does not demonstrate that petitioner's involuntary admission was erroneous.

In reaching this result, we acknowledge that petitioner and his expert focus on the propriety of petitioner's initial, involuntary admission — claiming that respondents failed to satisfy the criteria set forth in Mental Hygiene Law § 9.39 (a). It is important to note, however, that it is petitioner, and not respondents, who bears the burden of proof here. Notably, petitioner did not commence a proceeding to challenge his initial admission to the hospital and, at the end of the 48-hour period, consented to a voluntary admission. Hence, even assuming, without deciding, that an emergency admission pursuant to Mental Hygiene Law § 9.39 (a) — once challenged — compels the admitting facility to present clear and convincing evidence to justify its retention of the affected patient (compare Rodriguez v City of New York, 72 F3d 1051 [1995], with Matter of Boggs v New York City Health & Hosps. Corp., 132 AD2d 340 [1987], appeal dismissed 70 NY2d 972 [1988]), that simply is not the nature of this proceeding, and nothing in the case law imposes either that burden or that evidentiary standard upon respondents in the context of the instant sealing application. 1335*1335 Accordingly, we agree with Supreme Court's dismissal of petitioner's application.

Ordered that the judgment is affirmed, without costs.

[1] The record does reflect, however, that petitioner reported to the professor that he suffered from bipolar disorder.

[2] On November 24, 2013, petitioner executed a voluntary request for hospitalization, which extended his stay until November 26, 2013."

ERAP AND STAYS IN HOLDOVER - ANOTHER DECISION

Barton v. Bixler, 2022 NY Slip Op 50228 - NY: Dist. Court, Suffolk County, 3rd Dist. March 30, 2022:

"The petitioner landlord Joseph Barton (hereafter "landlord") commenced this summary eviction proceeding pursuant to petition dated September 29, 2020. The tenant, Kelly Bixler (hereafter "the tenant") previously filed a COVID hardship tenant's declaration and received an automatic stay of this eviction proceeding. The Court notes that the COVID Moratorium stay statutorily vitiated on January 15, 2022. Of relevant significance, the tenant has also interposed the affirmative defense that this matter is stayed pursuant to the provisions of New York State's "Emergency Rental Assistance Program" law (Chapter 417(A)(B3)) of Chapter 56 of the laws of 2021, (hereafter "ERAP"), as a result of the filing of an ERAP application on June 22, 2021. The status of same as detailed by the New York State Office of Temporary and Disability Assistance (hereafter "the Administering Agency") on the date of the first hearing on this application was "under review". By application dated February 7, 2022 the landlord moved to vacate the ERAP automatic stay.

February Hearing

During the initial stage of the hearing on this application, the landlord advanced two arguments. The first was that the tenant is not eligible for ERAP and the second is that the ERAP program is presently "in an unfunded condition". The landlord argues that it is well known that the Administrating Agency has exhausted its funding and is not in a position to finalize a decision on ERAP eligibility. It is argued that as such, the prospect of an administrative decision which could potentially vacate the ERAP stay is at best "illusory", and at worst an "indeterminate impossibility".

As to the first issue posited; this Court has previously opined that it has the inherent concurrent authority to conduct a "good faith" hearing to assess eligibility when a tenant has invoked a self initiated automatic stay by filing an application under the ERAP statute. See, Abuelafiya v. Orena, 73 Misc 3d 576 (Suff. Co. Dist. Ct. 2021). See also, Hudson Ave. Housing Associates v. Howard, 2022 WL 829785 (Civ. Ct. Warren Co., J. Hobbs). The guiding premise of said opinion was the United States Supreme Court's striking down New York's companion eviction moratorium law; wherein it was determined that "due process" prohibits a statute from "precluding a landlord from contesting. .. certification (of eligibility) and denies the landlord a hearing" to challenge the automatic stay. The problem found with a self certification is that "no man can be a judge in his own case". See, Chrysafia et al v. Marks, 141 S. Ct. 2482 (U.S. 2021); citing to In re Murchison, 349 U.S. 133 (U.S. 1955).

The Court laid out the ERAP eligibility requirements in its Abuelafiya decision and incorporates them by reference herein. The record presented in the hearing the Court conducted in February evidences that the tenant is eligible. The second thornier issue was the landlord's contention that the exhaustion of ERAP funding makes the statutory "alternative remedy" scheme an unconstitutional sham.^[1] Fortunately, the Court need not delve into the constitutionality of the ERAP statute as during a briefing adjournment ERAP distributed $15,000.00 representing a fifteen (15) month maximum distribution which was deposited by the landlord "under protest".

Such a payment belies any contention of an illusory sham funding program. The only remaining issues as framed by the parties during the March hearing are whether the deposit of said funds "under protest" is "participation" with ERAP. Secondly, whether the tender and acceptance of the maximum ERAP benefit establishes a waiver of the approximately nine (9) months ($9,000.00) presently due, over and above the fifteen (15) months which were paid by ERAP.

March 2022 hearing "Under Protest"

The Court will summarily deal with the landlord's threshold argument that if a landlord declines to participate in ERAP: that he is not bound by the statute's stays and/or declared waivers. See, Actie v. Gregory, 74 Misc 3d 1213(A), (NY Civ. Kings County 2022) in support of this contention. See also, Carousel Properties v. Valle, 74 Misc 3d 1217(A) (Suff. Co. Dist. Ct. 2022) for the finding that even acceptance of ERAP funds doesn't re-instate a tenancy. While this may be correct; the facts in the present case indicate that the landlord did in fact complete his component of the ERAP application and as such the deposit of a maximum benefit (even under a last minute protest) is participation.

Is Acceptance of Partial Payment A Waiver of All Outstanding Arrears?

However, it is quite a more compelling argument to assert that ERAP cannot compel a waiver of the nine (9) months of outstanding rent due after receipt of the fifteen (15) maximum payments. How can a tenant be "eligible" for an ERAP payment after having already received the maximum benefit. Inherently, the applicant is no longer eligible. A review of the exact statutory language in ERAP discloses on page 4, Sec. 5(d) at line 46 as follows:

Acceptance of payment for rent or rental arrears from this program or any local program administering federal emergency rental assistance program funds shall constitute agreement by the recipient landlord or property owner: (i) that the arrears covered by this payment are satisfied and will not be used as the basis for a non-payment eviction. Emphasis added.

The fundamental purpose of ERAP is to provide a stay of eviction pending a determination that the tenant is eligible to receive up to fifteen (15) months of rental arrears. Upon acceptance of same, the landlord waives any late fees or other minor discrepancies of the amount due for the covered fifteen (15) month period. However, should the statute seek to compel waiver of sums due for months not "in the covered arrears", which are in excess of the fifteen (15) month maximum benefit, the statute again runs into constitutional peril as violative of Article I, Sec. 10 of the U.S. Constitution involving the prohibition against governmental "impairment of private contracts".

The Court is required to construe statutes in a manner to avoid constitutional violations. See New York Statutes, Sec 150. The only manner for the court to avoid the aforestated constitutional issue is to read the statute as it is plainly written and determine that the legislature only intended to cure fifteen (15) months of arrears and to leave any excess arrears to the tenant to cure. See generally, Abuelafiya v. Orena cite infra citing to People v. Liberta, 64 NY2d 152, 485 N.Y.S. 2d 207, 474 N.E. 2d 567 (NY 1984), United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953), Collado v. Boklari, 27 Misc 3d 161, 892 N.Y.S. 2d 731 (Suf. Co. Dist. Ct. 2009).

As the automatic stay ceased upon the ERAP determination of payment approval, no stay exists. As no waiver for the remaining uncovered nine (9) months occurred the tenant is responsible to pay same ($9,000.00) on or before May 1, 20022 to cure her rent arrears. If payment is made, this petition will be dismissed. If not, the landlord may submit judgment for $9,000.00 plus judgment of possession and a warrant of eviction.

[1] As in the Chrysafia case, new York's automatic stay ERAP statute allows for self certification. The difference in the case at bar is that the ERAP statute creates an administrative process wherein eligibility is determined by an Administrating Agency, and that the stay is indeterminate except for the fact that the ERAP program sunsets in 2025. Other trial Courts in New York has sought to distinguish ERAP from the companion "moratorium" statutes by asserting that the due process clause of the 5th and 14th amendments of the U.S. constitution are not violated because ERAP is a "diversion" program which merely transfers litigation to an alternative regulatory forum. See, Harbor Tech, LLC v. Correa, 73 Misc 3d 1211 (A) (NY Civ. Ct. 2021); Montgomery v. Daniels, 38 NY2d 41(NY 1975). The Montgomery case involves a statutorily created limit to Court access as a consequence of an "alternative remedy" for recovery. In the nature of dicta, the issue of whether an unfunded ERAP Administrative Agency is constitutionally sustainable is now temporarily moot. However, the Court does opine that any alternative remedy program must still comport with the seminal case defining due process as requiring "an opportunity to be heard" wherein an adverse litigant must receive a hearing before a neutral tribunal "in a meaningful time" and in a "meaningful manner". See, Bodie v. The State of Connecticut, 461 U.S. 371 (U.S. 1971), citing to Armstrong v. Manzo, 380 U.S. 545 (U.S. 1965)."

LOSING CUSTODY OVER COVID VAX

MATTER OF SOPER v. Soper, 2022 NY Slip Op 2125 - NY: Appellate Div., 2nd Dept. 2022:

"Andrew Soper (hereinafter the father) and Courtney Soper (hereinafter the mother) are the formerly married parents of three children. Pursuant to a stipulation of custody and parental access dated April 12, 2018 (hereinafter the custody stipulation), which was incorporated but not merged into the parties' judgment of divorce entered July 23, 2019, the parties agreed to joint legal custody of the children and to defer medical decisions for the children to specified pediatricians. In January 2020, the father petitioned to modify the custody stipulation so as to award him sole decision-making authority with regard to the children's medical care. The father alleged that the mother had violated the custody stipulation by obtaining medical care for the children from pediatricians other than those named in the custody stipulation, that the mother was refusing to give consent for the children to receive vaccinations, and that the youngest child had been prohibited from attending school until the school district received proof that the child was up to date on his vaccinations. In an order dated June 8, 2020, the Family Court granted the father's petition, and the mother appeals.

"Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child" (Matter of Burke v Squires, ___ AD3d ___, ___, 2022 NY Slip Op 00861, *2 [2d Dept]; see Matter of Bodre v Stimatz, 150 AD3d 1228, 1229). "`The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances'" (Matter of Burke v Squires, ___ AD3d at ___, 2022 NY Slip Op 00861, *2, quoting Matter of Cabano v Petrella, 169 AD3d 901, 902).

Here, the Family Court's determination is supported by a sound and substantial basis in the record. The uncontroverted evidence that the mother had refused to consent to the children receiving vaccinations recommended by the pediatricians named in the custody stipulation, leading to the youngest child being prohibited from attending school, constituted "a sufficient change in circumstances such that modification [was] necessary to ensure the best interests and welfare of the child" (Matter of Burke v Squires, ___ AD3d at ___, 2022 NY Slip Op 00861, *2). Furthermore, under the totality of the circumstances, awarding the father sole decision-making authority with regard to the children's medical care was in the children's best interests (see ___ AD3d at ___, 2022 NY Slip Op 00861, *2; Matter of Ednie v Haniquet, 185 AD3d 1029, 1030)."

DIVORCE AND THE DOG

Effective October 2021, Domestic Relations Law 236, Part B(5)(d) sub-paragraph 15:

"(15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal", as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law."

And that definition is as follows:

"5. “Companion animal” or “pet” means any dog or cat and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. “Pet” or “companion animal” shall not include a “farm animal” as defined in this section."

UPCOMING PROPOSED RULES IN FORECLOSURES?

As one attorney noted, a proposed bill which has already passed Assembly, known as the “foreclosure abuse prevention act may alter the foreclosure of a mortgage in New York State with respect to important issues as the statute of limitations, and the ability to start a new foreclosure action after dismissal of an existing action. It also could be given retroactive application.

Here it is in the Senate version:

"BILL NUMBER: S5473D REVISED 03/08/2022

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 discontinuance; failure
to obtain personal jurisdiction 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 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 stat-
ute 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 pl aintiff 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 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 limitations peri-
od, or the expiration thereof, unless expressly prescribed by statute.
Once a cause of action has accrued, CPLR 3217 (e) clarifies that the
voluntary discontinuance of an action upon an instrument described under
CPLR 213 (4) shall not effectuate a "de-accrual" 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'V.V. 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,AD3d, 2021 NY Slip Op 06979, *3 (2d
Dept 2021); citing Engel, 37 NY3d at 19, 20, 24), the rules pronounced
in Engel(1) 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 prece dent in
which courts routinely, and inappropriately, apply CPLR 2001 or common-
law doctrines (now clarified and codified herein) to disregard or other-
wise excuse violations thereof, typically under the guise of the prior
action being "de facto" discontinued or "effectively abandoned," thereby
excusing the plaintiff from seeking the leave of court expressly
required by the subdivision (see e.g., Wells Fargo Bank, N.A. v Irizar-
ry, 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 irrel-
evant (see Weisblum, 85 AD3d at 107; citing CPLR 2001 ("Where, as here,
the condition sought to be disregarded is a mandatory condition prece-
dent, the plaintiffs 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, cancella-
tion, resetting, tolling, or extension of the statute of limitations;
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 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
Mein 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, lamn 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 Interstate 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 interpreted under existing decisional law, is
to reset the statute of limitations on an already-accrued cause of
action to foreclose a mortgage (e.g., Smith, 199 AD3d at 822). Since the
public policy of the statute of limitations is implicated where a writ-
ing 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, Celler, 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 NA., 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 specif-
ically 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. BankN.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
representative. 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 claim 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 accel-
eration 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. 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) ("(A) defendant asserting the statute (of limitations defense)
need not negate any exceptions contained therein, the burden resting
upon plaintiffs to aver facts showing the case at hand falls within such
exceptions")).  However, courts have recently permitted foreclosure
plaintiffs to depart from the established law, going so far a s to undu-
ly enlarging 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
Trust Co., N.A. v Lagasse, 188 AD3d 775, 777 (2d Dept 2020)). Decisions
such as these should no longer be followed.

For example, litigants confronted with a statute of limitations dismiss-
al in a subsequent foreclosure action have assailed their or their pred-
ecessor's standing to commence a prior foreclosure action, regardless of
whether the issue was actually, timely, or otherwise properly asserted
or raised 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)). 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 information principally in the
possession of the plaintiff and often unknown to the defendant")).  The
rules of judicial conduct impose an obligation upon litigants and attor-
neys 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 plaintiffs who
knew or should have known of their lack of standing and their later
invocation of this alleged lack of standing to avoid a statute of limi-
tations dismissal in a subsequent foreclosure action cannot be counte-
nanced. At best, judicial condonation of this conduct allows a litigant
to avoid the consequences of its own lack of diligence. At worst, judi-
cial condonation of this conduct permits a litigant to avoid sanction
for its affirmative misrepresentation to the court in the prior action
that it had standing to maintain the prior 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 mortgage 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 infer-
ence, 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), overruled 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
based on an express judicial determination, made upon a timely inter-
posed defense (see CPLR 3015(a); 3211(e)), that the instrument was not
validly accelerated (Saglimbeni, 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); U.S. Bank N.A.
v Hazan, 176 AD3d 637, 638 (1st Dept 2019)); and (2) reflect the Legis-
lature's recognition of the inherent difficulties defendants encounter
in establishing 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) (Barros, 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 limita-
tions period on other or separate grounds; that is, "non-estopped"
grounds.

 
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 discontinuance of a foreclosure action, wheth-
er by motion, order, stipulation, or notice, cannot waive, postpone,
cancel, toll, extend, revive, or reset the statute of limitations peri-
od, 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 predi-
cated 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.(5)
(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 expressio 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
Academy v Steinberg, 41 NY2d 746, 750 (1977); see also Prudence Co. v
160 W. Seventy--Third St. Corp., 260 NY 205, 212 (1932) ("(1)n no event
is . . . the mortgagee accorded rights beyond the stipula tions of the
mortgage")).
(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 19940); 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) See generally Gleason v Michael Vee, Ltd., 96 NY2d 117, 122-123
(2001)."