Opinion
1011 CA 21-00581
12-23-2021
U.S. BANK NATIONAL ASSOCIATION, Not in Its Individual Capacity but Solely AS TRUSTEE FOR the RMAC TRUST, SERIES 2016-CTT, Plaintiff-Appellant, v. Matthew R. FARRELL, Defendant-Respondent, et al., Defendants.
KNUCKLES, KOMOSINSKI & MANFRO, LLP, ELMSFORD (MAX T. SAGLIMBENI OF COUNSEL), FOR PLAINTIFF-APPELLANT. WESTERN NEW YORK LAW CENTER, BUFFALO (PAMELA S. LANICH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
KNUCKLES, KOMOSINSKI & MANFRO, LLP, ELMSFORD (MAX T. SAGLIMBENI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
WESTERN NEW YORK LAW CENTER, BUFFALO (PAMELA S. LANICH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In 2009, plaintiff's predecessor in interest commenced a residential foreclosure action against defendant-respondent (defendant), among others (2009 action). That action remained dormant until 2018, when plaintiff moved for a default judgment and an order of reference, and defendant cross-moved to dismiss the complaint on grounds including failure to enter default within one year (see CPLR 3215 [c] ). In an order entered April 1, 2019, Supreme Court (Colaiacovo, J.) granted defendant's cross motion and dismissed the complaint in the 2009 action. Plaintiff then commenced this foreclosure action against defendant, among others, on September 18, 2019 (2019 action), and served defendant on October 5, 2019. Defendant answered and moved for an order dismissing the complaint as barred by the six-year statute of limitations (see CPLR 213 [4] ), as well as judgment on certain counterclaims that were asserted in his answer. Supreme Court (Feroleto, J.) granted the motion in part and dismissed the complaint. We affirm.
Even assuming, arguendo, that the savings provisions of CPLR 205 (a) apply inasmuch as the 2009 action was not dismissed for neglect to prosecute (see Broadway Warehouse Co. v. Buffalo Barn Bd., LLC , 191 A.D.3d 1464, 1464-1465, 142 N.Y.S.3d 693 [4th Dept. 2021] ; see generally CPLR 3216 ), we conclude that the court properly granted the motion and dismissed the 2019 action as time-barred. Insofar as is relevant here, following the termination of the 2009 action, plaintiff was entitled to "commence a new action upon the same transaction or occurrence ... within six months after the termination[,] provided ... that service upon defendant [was] effected within such six-month period" ( CPLR 205 [a] ; see Broadway Warehouse Co. , 191 A.D.3d at 1465, 142 N.Y.S.3d 693 ). Generally, the six-month period starts running on the date of entry of the order dismissing the prior action (see U.S. Bank N.A. v. Navarro , 188 A.D.3d 1282, 1283, 132 N.Y.S.3d 808 [2d Dept. 2020] ; Ross v. Jamaica Hosp. Med. Ctr. , 122 A.D.3d 607, 608, 996 N.Y.S.2d 118 [2d Dept. 2014] ), not when the order is served with notice of entry (see Burns v. Pace Univ. , 25 A.D.3d 334, 335, 809 N.Y.S.2d 3 [1st Dept. 2006], lv denied 7 N.Y.3d 705, 819 N.Y.S.2d 872, 853 N.E.2d 243 [2006] ).
Here, the order dismissing the 2009 action was entered on April 1, 2019, yet service upon defendant was not effected until over six months later on October 5, 2019. Although plaintiff does not dispute either of those facts, it nevertheless contends that termination of the 2009 action did not occur on the date of entry, but upon expiration of its right to file a notice of appeal from the order dismissing that action. We reject that contention. Although plaintiff is correct that, if an aggrieved plaintiff takes an appeal from an order dismissing a prior action, the " ‘termination’ of the prior action occurs when appeals as of right are exhausted" ( Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.] , 5 N.Y.3d 514, 519, 806 N.Y.S.2d 453, 840 N.E.2d 565 [2005] ), "this applies only where an appeal was available and was in fact taken" (Siegel & Connors, NY Prac § 52 [6th ed 2018]) and, here, no appeal was taken from the order dismissing the 2009 action (cf. Andrea , 5 N.Y.3d at 519, 806 N.Y.S.2d 453, 840 N.E.2d 565 ).
Finally, defendant's contention that he is entitled to judgment on his counterclaims is not properly before us inasmuch as defendant did not file a notice of appeal from the order on appeal (see CPLR 5513 [a] ; Matter of HSBC Bank USA, NA [Makowski] , 72 A.D.3d 1515, 1516-1517, 899 N.Y.S.2d 777 [4th Dept. 2010] ).