Opinion
Index No. 900386-22
03-22-2023
Newrez LLC D/B/A SHELLPOINT MORTGAGE SERVICING, Plaintiff, v. Joseph Kalina AKA JOSEPH F. KALINA, JR.; KIMBERLY KALINA AKA KIMBERLY P. KALINA; PRIME PROPERTY PROTECTION LLC; HSBC BANK USA, N.A., and JOHN DOE AND JANE DOE No.1 through #7, the last seven (7) names being fictitious and unknown to the Plaintiff, the persons or parties intended being the tenants, occupants, persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants
AKERMAN LLP, By: Jordan M. Smith, Scott B. Brenner, Attorneys for Plaintiff Newrez LLC, d/b/a Shellpoint Mortgage Servicing Sandra S. Poland Demars, Esq., Attorneys for Defendant Franklin and Grant LLC, successor-in-interest to Prime Property Protection LLC.
Unpublished Opinion
AKERMAN LLP, By: Jordan M. Smith, Scott B. Brenner, Attorneys for Plaintiff Newrez LLC, d/b/a Shellpoint Mortgage Servicing
Sandra S. Poland Demars, Esq., Attorneys for Defendant Franklin and Grant LLC, successor-in-interest to Prime Property Protection LLC.
PETER A. LYNCH, J.S.C.
INTRODUCTION
By Decision and Order dated November 22, 2022, incorporated herein and made a part hereof by reference, this Court denied Defendant's motion for summary judgment to dismiss the complaint.
NYSCEF Doc. No. 48.
In relevant part, this Court held that the discontinuance of the prior foreclosure action in 2018, constituted a revocation of the election to accelerate the loan for limitations purposes (see Freedom Mtge. Corp. v Engel, 37 N.Y.3d 1, 19 [2021]). Defendant moves to renew its motion in reliance upon the amendment of CPLR §3217 (e), effective December 30, 2022.
AMENDMENT OF CPLR 3217
As part of the foreclosure abuse prevention act, 2022 NY AB 7737, effective December 30, 2022, CPLR §3217 was amended by adding new paragraph (e), which provides:
(e) Effect of discontinuance upon certain instruments. In any action on an instrument described under subdivision four of section two hundred thirteen of this chapter, the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute. (Emphasis added)
Section 10 of the foreclosure abuse prevention act provides:
"This act shall take effect immediately and shall apply to all actions commenced on an instrument described under subdivision four of section two hundred thirteen of the civil practice law and rules in which a final judgment of foreclosure and sale has not been enforced." (Emphasis added)
Clearly, the act applies to actions pending as of the effective date, or actions commenced after the effective date. Under the new law, if a pending action is discontinued, the statute of limitations is not revived or reset. Such provision stands in stark contrast to the ruling in Freedom Mtge. Corp. v Engel, supra.
MOTION TO RENEW
CPLR R 2221 (e) provides:
(e) A motion for leave to renew:
1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and
3. shall contain reasonable justification for the failure to present such facts on the prior motion.(See Weaver v. Weaver, 198 A.D.3d 1140, 1143 [3d Dept. 2021], where the Court held,
"A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion"). (Emphasis added)
Since the prior foreclosure action was discontinued in 2018, it was not pending as of the December 30, 2022, effective date. The issue distills to whether the amendment applies, retroactively, to the foreclosure action discontinued in 2018. It does not!
STATEMENT OF LAW
The statute amendment does not expressly state that it applies retroactively. Accordingly, there is a presumption that the statutory amendment is prospective in application.
Here, the amendment impacts the statute of limitations, to the extent the limitations period is not revived when an action is discontinued. If applied herein, Plaintiff would wrongfully be divested of its right of action which this Court recognized in accord with the precedent established in Freedom Mtge. Corp. v Engel, supra., i.e., that the discontinuance of the action in 2018 revoked the election to accelerate the loan for limitations purposes. Accordingly, retroactive application of the amendment is not permitted (see Jacobus v. Colgate, 217 NY 235, 240 [1916] (Cardozo, J.), where the Court reasoned,
"The general rule is that statutes are to be construed as prospective only. It takes a clear expression of the legislative purpose to justify a retroactive application. Changes of procedure, i. e., of the form of remedies, are said to constitute an exception, but that exception does not reach a case where before the statute there was no remedy whatever. To supply a remedy where previously there was none of any kind, is to create a right of action".)(See also, Berkovitz v. Arbib & Houlberg, Inc., 230 NY 261 [1921], where the Court (Cardozo, J.) held, "We are not to presume a willingness that rights already accrued through actions lawfully initiated are to be divested or impaired"; c.f. Pataki v. Kiseda, 80 A.D.2d 100, 102 [2d Dept. 1991]).
In People v. Duggins, 192 A.D.3d 191, 193 [3d Dept. 2021], the Court addressed the standard for determining whether legislation should be given retroactive effect, holding,
"In determining whether a statute should be given retroactive effect," the Court of Appeals has identified two competing "axioms of statutory interpretation". On one hand, statutory "[a]mendments are presumed to have prospective application unless the Legislature's preference for retroactivity is explicitly stated or clearly indicated. On the other hand, as an exception to that general rule, "remedial legislation or statutes governing procedural matters should be applied retroactively" unless such application would "impair vested rights or bestow additional rights". Courts must attempt to discern the Legislature's intent, first by looking to the language of the statute and, if necessary, considering legislative history and other guides...") (Emphasis added)
Clearly, there is no indication that the legislative intent was to impair already vested rights. Rather, it is manifest that the Legislature was responding to, not undoing, the precedent established in Freedom Mtge. Corp. v Engel, supra. for pending or future litigation.
Since this Court determined that the amendment of CPLR 3217 (e) is not entitled to retroactive application to the facts herein, there is no need to address the remaining constitutional challenges raised by the Plaintiff (see McKinney's Statutes §150 (c)).
CONCLUSION
For the reasons more fully stated above, Defendant's motion to renew its motion for Summary Judgment to dismiss the Complaint is denied.
This memorandum constitutes the decision and order of the Court.