Supreme Court, Westchester County, February 7, 2022

Greenberg Traurig, LLP (Ryan Sirianni of counsel) for plaintiff.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf, & Carone, LLP (Christopher A. Gorman of counsel) for defendants.

In an action to foreclose a mortgage (1) the plaintiff moves to renew the decision and order, dated March 10, 2020, which granted defendants William Weininger and Ellen Weininger's motion seeking to renew their cross motion to dismiss, and upon renewal, for an order granting plaintiff's motion for summary judgment filed September 6, 2018, in its entirety and denying defendants' cross motion filed on October 25, 2018, in its entirety (mot seq 6); and (2) the defendants William Weininger and Ellen Weininger cross-move to stay the determination of the plaintiff's motion pending plaintiff's appeal to the Appellate Division, Second Department, pursuant to CPLR 2201.

Relevant Factual and Procedural Background

The facts and procedural history of this action have been addressed in the prior decisions and orders issued in motion sequences 1, 2, 3, and 4 rendered by this court.

In a decision and order dated March 10, 2020 (Deutsche Bank Natl. Trust Co. v Weininger, 2020 NY Slip Op 34845[U] [Sup Ct, Westchester County 2020]), this court granted defendants William Weininger and Ellen Weininger's motion to renew their prior cross motion for summary judgment dismissing the complaint, and upon renewal, the cross motion of the defendants William Weininger and Ellen Weininger for summary judgment dismissing the complaint as time-barred by the statute of limitations was granted and the complaint was dismissed. In its [*2]decision, this court did not reach the issue of whether the defendant Ellen Weininger is a borrower entitled to a notice pursuant to RPAPL 1304.

The plaintiff now moves to renew its motion for summary judgment, filed on September 6, 2018 (mot seq 1), and upon renewal,{**74 Misc 3d at 950} for an order granting plaintiff's motion for summary judgment in its entirety and denying defendants' cross motion for summary judgment, filed on October 25, 2018, dismissing the complaint (mot seq 2) on the ground that it is barred by the statute of limitations. The defendants oppose the motion and cross-move for a stay of the determination of the plaintiff's motion pending the plaintiff's appeal in the Second Department of the March 10, 2020 decision and order. The plaintiff opposes the motion.

Discussion

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213 [4]; Citibank, N.A. v Kletzky, 196 AD3d 459, 461 [2d Dept 2021]). With respect to a mortgage payable in installments, separate causes of action accrue for each installment that is not paid, and the statute of limitations begins to run on the date each installment becomes due (U.S. Bank Trust, N.A. v Aorta, 167 AD3d 807, 808 [2d Dept 2018]). However, residential mortgage contracts typically provide noteholders the right to accelerate the maturity date of the loan upon the borrower's default, thereby demanding immediate repayment of the entire outstanding debt (Freedom Mtge. Corp. v Engel, 37 NY3d 1, 21 [2021]). When the noteholder elects to exercise that remedy, a cause of action to recover the entire balance of the debt accrues at the time the loan is accelerated, triggering the six-year statute of limitations to commence a foreclosure action (id. at 21; see CPLR 203 [a]; 213 [4]). A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action (U.S. Bank N.A. v Bernice 380 Corp., 186 AD3d 1750, 1752 [2d Dept 2020]).

A motion for leave to renew shall be based on new facts not offered on the original motion or "shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221 [e] [2]).

In support of its motion to renew, the plaintiff argues that since this court's March 10, 2020 decision and order, the Court of Appeals has reversed and abrogated precedent and then controlling law relied on by this court. In short, the Court of Appeals held that "where acceleration occurred by virtue of the filing of a complaint in a foreclosure action, the noteholder's voluntary discontinuance of that action constitutes an affirmative{**74 Misc 3d at 951} act of revocation of that acceleration as a matter of law, absent an express, contemporaneous statement to the contrary by the noteholder" (Freedom Mtge. Corp. v Engel, 37 NY3d 1, 32 [2021]; contra Ditech Fin., LLC v Naidu, 175 AD3d 1387 [2d Dept 2019]).

Here, as previously held and as is undisputed, the filing of the first foreclosure action in October 2010 accelerated the mortgage debt and the statute of limitations began to run (see EMC Mtge. Corp. v Patella, 279 AD2d 604 [2d Dept 2001]). The plaintiff moved to discontinue the first foreclosure action, and an order was entered on August 5, 2016, granting the motion (Scheinkman, J.) within the six-year time period. As there is no evidence of an express, contemporaneous statement to the contrary by the noteholder, the plaintiff's voluntary discontinuance of the first foreclosure action is an affirmative act of revocation of the acceleration as a matter of law (Freedom Mtge. Corp., 37 NY3d 1). The plaintiff's reason for discontinuing the 2010 action is not relevant (id. at 36 ["A noteholder's motivation for exercising a contractual right is generally irrelevant"]). Even if plaintiff's second foreclosure action, [*3]commenced in 2015, accelerated the debt, the commencement of this action on March 24, 2017, was timely.

As to the issue regarding whether the defendant Ellen Weininger is a borrower entitled to a notice pursuant to RPAPL 1304, the court upholds it prior determination in the decision and order, dated August 15, 2019, and filed August 16, 2019, that by not signing the note, defendant Ellen Weininger is expressly not personally obligated to pay the sum secured by the mortgage, and therefore, was not a "borrower" entitled to a 90-day pre-foreclosure notice pursuant to RPAPL 1304 (see also Charles Schwab Bank v Winitch, 179 AD3d 1003 [2d Dept 2020]).

CPLR 2201 provides that "[e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just." "It is well settled that a court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources" (Zonghetti v Jeromack, 150 AD2d 561, 563 [2d Dept 1989]). Given the Court of Appeals subsequent decision in Freedom Mtge. Corp. v Engel, which directly resolves the issue of whether this foreclosure action was brought within the statute of limitations, in the court's discretion, a stay pending appeal in this action is not warranted (37 NY3d 1 [2021]).{**74 Misc 3d at 952}

Accordingly, it is ordered that plaintiff's motion to renew the decision and order, dated and filed March 10, 2020, and its prior motion for summary judgment against the defendants William Weininger and Ellen Weininger is granted (mot seq 6); and it is further ordered that upon renewal, plaintiff's motion for summary judgment against the defendants William Weininger and Ellen Weininger is granted (mot seq 6); and it is further ordered that defendants' cross motion for a stay is denied (mot seq 7).