Opinion
Index No. 208030/2022
02-23-2023
U.S. Bank National Association, AS TRUSTEE FOR RESIDENTIAL ASSET SECURITIES CORPORATION, HOME EQUITY MORTGAGE ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-EMX8, Plaintiff, v. Castel Pierre, BROOKHAVEN MEMORIAL HOSPITAL AS ASSIGNEE FOR SUFFOLK HEALTHCARE SOLUTIONS INC., GOOD SAMARITAN HOSPITAL, SLOMINS, INC., PATRICIA PIERRE, Defendants.
Woods Oviatt Gilman LLP Attorneys for Plaintiff JEFFREY HERZBERG, PC Attorneys for Defendant Castel Pierre
Woods Oviatt Gilman LLP
Attorneys for Plaintiff
JEFFREY HERZBERG, PC
Attorneys for Defendant Castel Pierre
Robert F. Quinlan, J.
Upon the papers submitted (notice of motion with supporting papers and opposition with supporting papers) it is
ORDERED that the defendant's motion to dismiss is denied, and it is further
ORDERED that the defendant is directed to answer the complaint within 30 days after this decision and order is filed with NYSCEF.
On July 25, 2006, defendant, Castel Pierre, executed and delivered to plaintiff's predecessor-in-interest a note in the sum of $340,000.00, which was secured by a mortgage on his property at 134 Ridge Road, Wyandanch, NY The note and mortgage were subsequently assigned to the plaintiff. The defendant failed to make the required monthly payments starting on August 1, 2013 and thereafter. The plaintiff commenced a foreclosure action (Index number: 028188/2013). This court, by decision and order dated July 26, 2022, granted the defendant's to dismiss the action based upon the failure to comply with RPAPL §1304. By order dated September 13, 2022, the action was discontinued and the notice of pendency was cancelled.
. In light of the Court of Appeals decision and order dated February 14, 2023, reversing the Appellate Division's decision and order in Bank of America, N.A. v. Kessler, this determination would be subject to review.
The plaintiff commenced this present action on December 15, 2022. The defendant has moved to dismiss the action based upon the statute of limitations and the failure to serve the notice pursuant to RPAPL §1304.
Initially, contrary to the plaintiff's position, the new CPLR 205-a is applicable, as the new law, Foreclosure Abuse Prevention Act, applies to all action which a final judgment of foreclosure and sale has not been enforced. The amendment was to provide a specific savings statute for foreclosures "in order to address judicial decisions that have been contrary to the spirit of this savings provision which have been overly indulgent of foreclosure plaintiffs whose cases have been dismissed for various forms of neglect, who are not entitled to the six months grace period means for diligent plaintiffs whose cases were dismissed for reasons that do not reflect their own fault "(New York Committee Report, Bill Number A7737B, 2021 NY A.B. 7737). However, even applying the new statute, the dismissal under RPAPL §1304 is not neglect so that the plaintiff does receive the six month saving period (Merino v. Wells Fargo Bank, N.A., 195 A.D.3d 489 [1st Dept 2021]; CitiMortgage, Inc. v. Moran, 188 A.D.3d 407 [1st Dept 2020]). As the action was commenced with the six month saving period, the part of the motion to dismiss based upon the statute of limitations must be denied.
§ 205-a. Termination of certain actions related to real property
(a) If an action upon an instrument described under subdivision four of section two hundred thirteen of this article is timely commenced and is terminated in any manner other than a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for any form of neglect, including, but not limited to those specified in subdivision three of section thirty-one hundred twenty-six, section thirty-two hundred fifteen, rule thirty-two hundred sixteen and rule thirty-four hundred four of this chapter, for violation of any court rules or individual part rules, for failure to comply with any court scheduling orders, or by default due to nonappearance for conference or at a calendar call, or by failure to timely submit any order or judgment, or upon a final judgment upon the merits, the original plaintiff, or, if the original plaintiff dies and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period. For purposes of this subdivision:
1. a successor in interest or an assignee of the original plaintiff shall not be permitted to commence the new action, unless pleading and proving that such assignee is acting on behalf of the original plaintiff; and
2. in no event shall the original plaintiff receive more than one six-month extension.
(b) Where the defendant has served an answer and the action upon an instrument described under subdivision four of section two hundred thirteen of this article is terminated in any manner, and a new action upon the same transaction or occurrence or series of transactions or occurrences is commenced by the original plaintiff, or a successor in interest or assignee of the original plaintiff, the assertion of any cause of action or defense by the defendant in the new action shall be timely if such cause of action or defense was timely asserted in the prior action.
The defendant's claim that the plaintiff failed to comply with RPAPL §1304 must also be rejected. The plaintiff includes the affidavit of Armenia Harrell the Vice President Loan Documentation of Wells Fargo Bank N.A. the Servicing Agent for Plaintiff. She states that she has personal knowledge of the business practices of Wells Fargo Bank. Further, she states that she has personal knowledge of the practices of Covius, LLC which does the printing, mailing, and tracking of the required notices to borrowers. Moreover, the documentation, including with the affidavit, establishing the two required mailing has been provided. This is sufficient to establish the required mailings (U.S. Bank NA v. Warshaw, 208 A.D.3d 919 [2nd Dept. 2022]).The defendant's claim of non-receipt is insufficient to establish a basis for dismissal (see United Nations Federal Credit Union v. Diarra, 194 A.D.3d 506 [1st Dept. 2021]). Consequently, the motion to dismiss is denied.
The foregoing constitutes the decision and order of the Court.