Supreme Court, Suffolk County, October 20, 2023

Jeffrey Herzberg, PC, Hauppauge, for plaintiff.

Day Pitney, LLP, New York City, for defendant.

It is ordered that plaintiff's motion (seq No. 004) is denied.

Susan Boreshesky (hereafter the plaintiff) moves this court under CPLR 2221 (e) to renew and upon renewal, granting plaintiff summary judgment discharging and vacating defendant's mortgage lien pursuant to RPAPL 1501 (4). U.S. Bank Trust, N.A. (hereafter the defendant) opposes the application and plaintiff replied.

On July 5, 2017, this court (J. Rouse, A.J.S.C.) entered an order denying plaintiff's motion for summary judgment because, the court held, she "failed to provide[ ] competent [*2]evidence that makes out a prima facie case that Household Finance [the plaintiff in the first foreclosure action commenced in 2010] had standing to accelerate the note alleged to be held by [U.S. Bank]" (2017 NY Slip Op 33552[U], *2 [Sup Ct, Suffolk County 2017]). The October 16, 2017 order granted defendant's motion to reargue its prior cross-motion for partial summary judgment on the issue of liability for all amounts paid for taxes and insurance (2017 NY Slip Op 33553[U] [Sup Ct, Suffolk County 2017]).

The two orders were appealed to the Appellate Division, Second Department which reversed this court and dismissed plaintiff's complaint by its decision dated August 10, 2022 (208 AD3d 547 [2d Dept 2022]) (the appellate decision). In its appellate decision, the Second Department relied on Freedom Mtge. Corp. v Engel (37 NY3d 1, 32 [2021]), in holding that

"Household's motion to voluntarily discontinue the foreclosure action, which was made less than six years after the foreclosure action was commenced, constituted an affirmative act of revocation of the acceleration of the mortgage debt as a matter of law absent evidence of an express, contemporaneous statement by Household to the contrary" (208 AD3d at 550).

The appellate decision concluded that this court should have granted defendant's motion for summary judgment and dismissed this case. (Id.; NY St Cts Elec Filing [NYSCEF] Doc No. 100.){**81 Misc 3d at 714}

Notice of entry of the appellate decision was served November 10, 2022 (NYSCEF Doc No. 101), which gave plaintiff until December 10, 2022, to appeal to the Court of Appeals. No appeal was filed. Thus, the appellate decision became a "final order" as of December 10, 2022.

Plaintiff's instant motion, dated February 22, 2023, seeks to renew not only the two orders this court entered in 2017 and 2018—but also the appellate decision which reversed this court. It indeed appears illogical that this court is authorized to vacate its appellate court's decisions.

CPLR 2221 was amended, effective July 20, 1999, by adding subdivisions (d), (e) and (f) to codify and clarify the rules governing motions for leave to reargue and renew which had evolved through case law (see L 1999, ch 281; Mem of Off of Ct Admin, Bill Jacket, L 1999, ch 281 at 12, 1999 NY Legis Ann at 158, 1999 McKinney's Sess Laws of NY at 1721-1722; 1999 Rep of Advisory Comm on Civ Prac to Chief Admin Judge of Cts of St of NY, reprinted in 1999 McKinney's Sess Laws of NY at 2065-2066). As relevant here, CPLR 2221 (e) (2) provides that a motion for leave to renew "shall demonstrate that there has been a change in the law that would change the prior determination." Consistent with case law, the amended statute does not impose a time limit for making a motion for leave to renew.

Before the amendment, a motion seeking relief from a prior order based on a change in the law was generally considered to be a motion for reargument (see Matter of Huie [Furman], 20 NY2d 568 [1967], rearg denied 21 NY2d 880 [1968]; Matter of Barnes [Council 82, AFSCME], 235 AD2d 826 [3d Dept 1997]; Foley v Roche, 86 AD2d 887 [2d Dept 1982]). Ordinarily, such a motion, like all motions for leave to reargue, had to be made before the time to appeal the prior order had expired (see Matter of Huie [Furman]; Matter of Barnes [Council 82, AFSCME]). Certain exceptions to this general rule evolved where the case was still pending, either in the trial court or on appeal (see Matter of Barnes [Council 82, AFSCME]; Bray v Gluck, 235 AD2d 72 [3d Dept 1997]; Foley v Roche).

Where, however, judgment had been entered and no appeal was pending, case law held that a motion for leave to reargue based on a change in the law should not be granted (see Matter of Huie [Furman]; Bray v Gluck; see also Deeves v Fabric Fire Hose Co., 19 [*3]AD2d 735 [2d Dept 1963], affd 14 NY2d 633 [1964]). As noted by the Court of Appeals, such a result might seem harsh, but{**81 Misc 3d at 715}

"there must be an end to lawsuits and the time to take an appeal cannot forever be extended. Absent the sort of circumstances mentioned in CPLR 5015, such as newly discovered evidence, fraud, lack of jurisdiction, etc., a determination of a court from which no appeal has been taken ought to remain inviolate." (Matter of Huie [Furman] at 572; see also Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364 [2d Dept 2000].)

The amended statute now specifically provides that a motion based on a change in the law is a motion for leave to renew. The statute imposes no time limit for making such a motion. However, there is no indication in the legislative history of an intention to change the common-law rule and its existing statute regarding the finality of judgments. (McKinney's Cons Laws of NY, Book 1, Statutes § 58, Judgments;^[FN*] see Mem of Off of Ct Admin, Bill Jacket, L 1999, ch 281 at 12, 1999 NY Legis Ann at 158, 1999 McKinney's Sess Laws of NY at 1721-1722; 1999 Rep of Advisory Comm on Civ Prac to Chief Admin Judge of Cts of St of NY, reprinted in 1999 McKinney's Sess Laws of NY at 2065-2066). None of the circumstances set forth in CPLR 5015, nor circumstances which would warrant the exercise of this court's inherent power to provide relief from a judgment, are present here (see Matter of Huie [Furman]; cf. McMahon v City of New York, 105 AD2d 101 [1st Dept 1984]). Consequently, because plaintiff's motion was made after the appellate decision dismissed plaintiff's case, and the time to appeal the appellate decision has expired, plaintiff's motion to renew is denied.

Plaintiff relies on the newly enacted Foreclosure Abuse Prevention Act (L 2022, ch 821) (FAPA) and argues that FAPA should apply to any matter where a final judgment of foreclosure and sale has not been enforced. If this is so, then, under the new provisions of CPLR 203 and 205-a the debt in this case was "not de-accelerated by the unilateral voluntary discontinuance of the prior action" and therefore, the case would not have been dismissed; plaintiff would prevail on her RPAPL article 15 action (plaintiff's affirmation in support of mot for lv to renew, NYSCEF Doc No. 103 at 8). However, plaintiff's reliance on FAPA's retroactive application to this case cannot stand.{**81 Misc 3d at 716}

FAPA serves to overrule the decision in Freedom Mtge. Corp. v Engel (37 NY3d 1 [2021]). Engel was the justification for the appellate decision to dismiss this action. Defendant correctly opposes plaintiff's motion to renew based upon the assertion that FAPA's retroactivity violates the constitutional prohibition against "taking without just compensation," "impairing vested rights," and "impairing private contracts."

This court has recently decided the issue of FAPA's retroactivity clause's constitutionality in Wilmington Trust, N.A. v Gawlowski (81 Misc 3d 683 [Sup Ct, Suffolk County 2023]). The case at bar involves a "final order," the same as in Gawlowski. FAPA's section 10 retroactivity clause violates both the New York State and United States Constitutions' requirement of due process and separation of powers. The court incorporates herein by reference the detailed Gawlowski case rationale for making this finding.

Accordingly, the court denies plaintiff's motion to renew as untimely; the appellate [*4]decision is a final order. Neither a motion to renew nor the commencement of a new action can change the appellate decision's final order. Further, plaintiff's reliance on FAPA to retroactively vitiate a final order (i.e., the appellate decision) is unconstitutional.