Bank of N.Y. Mellon v. Laskin

2019 NY Slip Op 31115(U)

The Bank of New York Mellon , et al.,. Plaintiff, v. Jerry Laskin, et al., Defendants.

INDEX NO. 604747/2018

SUPREME COURT-STATE OF NEW YORK-COUNTY OF NASSAU NASSAU COUNTY FORECLOSURE PART

RECEIVED: March 21, 2019

March 20, 2019

NYSCEF DOC. NO. 78

SHORT FORM ORDER

PRESENT:HON. THOMAS A. ADAMS, Supreme Court Justice

Motion Seq. No .2

Date: Feb. 19, 2019

This motion by the plaintiff for an order pursuant to CPLR 2221 (d) and (e) granting it reargument and/or renewal of this court's order dated December 14, 2018, which granted the defendant Jerry Laskin's ("defendant") motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) is determined as provided herein.

Via this court's order dated December 14, 2018, this action was dismissed as untimely pursuant to the defendant's motion to dismiss pursuant to CPLR 3211 (a) (5) based upon a prior foreclosure action which had been commenced on August 3, 2011. That action was in fact discontinued "without prejudice" via a "Stipulation of Discontinuance of Action" and a "Stipulation Cancelling Notice of Pendency" which were signed on behalf of both parties on May 19, 2017. This court found that that Stipulation did not constitute a revocation of the 2011 acceleration of the note and mortgage and that this action which was commenced more than six years from the date that the prior action was commenced was untimely. Relying on and quoting Freedom Mtge. Corp. v Engel (163 AD3d 631, 633 [2d Dept 2018]), the court reasoned that "the Stipulation was silent on the issue of revocation of the election to accelerate, and did not otherwise indicate that the plaintiff would accept installment payments from the defendant."

The plaintiff seeks both reargument and/or renewal.

In seeking renewal, the plaintiff relies on correspondence which its records indicate were sent to the defendant by both regular and certified mail at two different addresses on April 11, 2017 shortly before the prior action was discontinued. Those letters unequivocally establish that the plaintiff revoked its acceleration of the mortgage. They provide, inter alia:

"This letter is to notify you that Nationstar Mortgage LLC("Nationstar") hereby rescinds and abandons any acceleration or act of acceleration previously made pursuant to the terms of the note and mortgage. Any prior demand for immeditae payment of the entire loan balance is withdrawn and the loan is reinstated as a monthly installment loan. This means that your loan has reverted back to monthly payments. You are obligated to make each monthly payment under the terms of yur promissory note and mortgage contract. The loan is now deemed de-accelerated."

"Although a motion to renew is generally based upon the discovery of material facts which were unknown to the movant at the time of the original motion, it is well settled that '[t]he requirement * * * is a flexible one, and a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion' " (Citibank, N.A. v Olson, 204 AD2d 381, 381-82 [2d Dept 1994], quoting Karlin v Bridges, 172 AD2d 644 [2d Dept 1991]). However, where the "new" facts Were known to the movant at the time of the original motion, the court's discretion is limited. In that case, the movant is required to offer a reasonable excuse for the failure to present the "new" facts on the prior motion in order to obtain renewal (Surdo v Levittown Pub. School Dist., 41 AD3d 486, 486 [2d Dept 2007]). "[L]aw office failure can be accepted as a reasonable excuse in the exercise of the court's sound discretion, the movant must submit supporting facts to explain and justify the failure, and mere neglect is not accepted as a reasonable excuse (citations omitted)" (Assevero v Rihan, 144 AD3d 1061, 1063 [2d Dept 2016]). Here, in an effort to explain its failure to offer the legal correspondence which clearly revoked its acceleration of the note and mortgage in 2011, the plaintiff represents that "such documents are extrinsic to the pleadings and, thus, arguably not appropriate for consideration on a CPLR 3211. motion." When considered in conjunction with the unsettled law applicable to whether a Stipulation of Discontinuance signed by the defendant suffices to revoke the plaintiff's acceleration of the mortgage (see infra), the plaintiff has adequately explained its failure to offer the facts offered now on theoriginal motion (Assevero v Rihan, 144 AD3d at 1063; Defina v Daniel, 140 AD3d 825, 826 [2d Dept 2016]). The exhibits submitted here conclusively establish that the plaintiff revoked its acceleration of the defendant's note and mortgage before the prior action was discontinued and that the defendant knew it: A signed receipt for the correspondence has been submitted. Renewal is granted and upon renewal, the defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) is denied.

In seeking reargument, the plaintiff faults this court for relying on Freedom Mtge. Corp. v Engel (163 AD3d 631, 633 [2d Dept 2018]), in which the Second Department held that:

"the plaintiff failed to raise a triable issue of fact as to whether it revoked its election to accelerate the mortgage within the six-year limitations period....[T]he plaintiff's execution of the January 23, 2013, stipulation did not, in itself, constitute an affirmative act to revoke its election to accelerate, since, inter alia, the stipulation was silent on the issue of the revocation of the election to accelerate, and did not otherwise indicate that the plaintiff would accept installment payments from the defendant (citations omitted)."

However, the court's holding was additionally based upon the fact that in that Stipulation "which was so-ordered by the Supreme Court, the parties agreed, inter alia, that: (1) the defendant was served with a copy of the summons and complaint; (2) the defendant would withdraw his motion; (3) the action would be discontinued without prejudice and the notice of pendency would be cancelled; and (4) they 'desire to amicably resolve this dispute and the issues raised in the [defendant's motion] without further delay, expense or uncertainty' " (Freedom Mtge. Corp. v Engel (163 AD3d at 633).

Plaintiff also faults this court for relying on U.S. Bank Nat. Ass'n v Barnett, (151 AD3d 791, 792 [2d Dept 2017]). In that case, the Supreme Court, after a hearing to determine the validity of service of process, vacated the judgment of foreclosure and sale entered in the first foreclosure action on the ground of lack of personal jurisdiction. Then, the plaintiff commenced that action to foreclose the mortgage which the court found to be untimely since the plaintiff itself had not revoked its acceleration of the note and mortgage.

In addition, the plaintiff faults this court for not following the court's holding in NMNT Realty Corp. v Knoxville 2012 Tr. (151 AD3d 1068, 1070 [2d Dept 2017]). That action was brought by the mortgagor to quiet title. He maintained that the Statute of Limitations to foreclose had expired based upon a previous acceleration of the note that occurred more than six years prior. The court found that "the defendant submitted proof that ... [its predecessor] moved for, and ... was granted, an order that discontinued the foreclosure action, canceled the notice of pendency, and vacated the judgment of foreclosure and sale it had been granted" and that it "thereby raised a triable issue of fact as to whether [its predecessor's] motion 'constituted an affirmative act by the lender to revoke its election to accelerate' " (NMNT Realty Corp. v Knoxville 2012 Tr., 151 AD3d at 1070, citing Federal Natl. Mtge. Assn. v Mebane, 208 AD2d 892, 894 [ Dept 1994]).

The plaintiff has demonstrated that none of the authorities relied on by the court clearly resolve the issue presented here, i.e., whether this action is time-barred, as a matter of law. In none of the cases did the court hold that a straightforward Stipulation of Discontinuance without prejudice signed by the defendant, standing alone, did not revoke an acceleration of a loan. Upon reconsideration, the court finds that the facts in NMNT Realty Corp. v Knoxville 2012 Tr. are most akin to the facts here. An issue of fact exists as to whether the plaintiff revoked its 2011 acceleration of the note and mortgage in 2017 and accordingly, whether this action is timely. Upon reargument, this court's order dated December 14, 2018 is vacated and the defendant's motion to dismiss this action pursuant to CPLR 32111 (a) (5) is denied.

The plaintiff additionally relies on Nationstar Mortg., LLC v MacPherson (...