Supreme Court, Suffolk County, March 8, 2024

The Ranalli Law Group, PLLC, Hauppauge, for Phyllis Joerger, defendant.

Knuckles, Komosinski, & Manfro, LLP, Upper Saddle River, New Jersey, for plaintiff.

It is ordered that the motion (No. 001) by defendant Phyllis Joerger seeking dismissal of the complaint is denied; and it is further ordered that plaintiff's counsel and defendant's counsel are directed to appear on April 18, 2024, at 9:30 a.m. in the courtroom of the undersigned in Part 33 located in the Supreme Court Annex Building, at One Court Street, Riverhead, New York, for a status conference. In the event a motion is filed on or before April 16, 2024, no conference will be necessary on April 18, 2024; and it is further ordered that movant is directed to file a notice of entry within five days of receipt of this order pursuant to 22 NYCRR 202.5-b (h) (2).

This is an action to foreclose a mortgage on residential real property situate in Lindenhurst. In essence, on February 21, 2006, defendant Brian Joerger agreed to repay $280,000.00 to plaintiff's predecessor in interest and executed a promissory note and, together with Phyllis Joerger, a mortgage. The defendant ceased making monthly payments as of May 1, 2009. An action for foreclosure was therefore commenced on May 7, 2013, at Suffolk County index number 12336/2013 (action No. 1). Defendant Brian Joerger filed an answer, and no other defendants appeared. On June 27, 2022, this court issued a memo decision and order determining three motions. First, the court granted the branches of the plaintiff's motion (No. 001) for an award of summary judgment as against the answering defendant Brian Joerger dismissing eight of the nine asserted affirmative defenses, and denied summary judgment with regard to the remaining defense. Second, the court granted defendant Phyllis Joerger's cross-motion (No. 002) to dismiss the complaint as against her. Third, defendant Brian Joerger's cross-motion (No. 003) for summary judgment was denied. After a conference with the parties, plaintiff filed another motion (No. 004) seeking dismissal of the fourth affirmative defense, and the defendant Brian Joerger filed a cross-motion (No. 005){**83 Misc 3d at 607} for summary judgment and dismissal of the complaint. By order dated March 9, 2023, the court granted the plaintiff's motion and denied the defendant's cross-motion.

On November 18, 2022, the plaintiff, relying on the version of CPLR 205 (a) in effect at the time, commenced the instant action. A supplemental summons and amended complaint [*3]were thereafter filed on December 6, 2022. The plaintiff noted in the complaint that action No. 1 would be consolidated with the new action.

On December 30, 2022, the Foreclosure Abuse Prevention Act (L 2022, ch 821) (FAPA) went into effect.

On January 19, 2023, defendant Phyllis Joerger (hereinafter solely the defendant), through counsel, filed an answer alleging seven affirmative defenses and three counterclaims. Thereafter, on March 13, 2023, the defendant, through counsel, filed the instant motion (No. 001) seeking dismissal of the complaint pursuant to CPLR 3211 (a) (1), (2), (5) and/or (8), challenging, inter alia, service upon the movant, the timeliness of the action, and the plaintiff's compliance with Banking Law § 6-l. The defendant further contends that statutes applicable in this case as amended by FAPA—that is, CPLR 205 (a) and CPLR 213 (4)—are to be applied retroactively and support dismissal of the complaint. The plaintiff opposes the motion and notes that application of FAPA would constitute an unconstitutional and improper retroactive application. The defendant filed a reply.

The court begins with its discussion of FAPA.

On February 18, 2021, the Court of Appeals rendered its decision in Freedom Mtge. Corp. v Engel (37 NY3d 1 [2021]) and reaffirmed the circumstances under which the acceleration of amounts due under a note secured by a mortgage are "deaccelerated" or, in other words, when the acceleration of a mortgage debt is revoked. The Engel Court held that the voluntary discontinuance of an action constituted a revocation of the debt which was accelerated with the commencement of a foreclosure action.

New York State Legislature Reaction

Nearly two years later, on December 30, 2022, FAPA went into effect. According to the legislative sponsor in the New York State Senate, FAPA's purpose is to "overrule the Court of Appeals' {**83 Misc 3d at 608}recent decision in Freedom Mtge. Corp. v Engel" (Senate Introducer's Mem in Support of 2022 NY Senate Bill S5473D, Sanders, rev May 4, 2022 [same-as bill to 2022 NY Assembly Bill A7737B], Bill Jacket, L 2022, ch 821 at 100). The sponsor notes that "abuses of the judicial foreclosure process . . . have been sanctioned by the judiciary [resulting] in perversion of longstanding law and creat[ing] an unfair playing field that favors the mortgage banking and servicing industry at the expense of everyday New Yorkers" (id. at 98). The "aim of the bill is to thwart and eliminate abusive and unlawful litigation tactics that have been employed by foreclosure plaintiffs to the prejudice of homeowners throughout New York," and to "level the playing field . . . [and] further clarify and reaffirm the legislative intent of a wide spectrum of laws that have been: (1) manipulated and abused by mortgage lending and servicing institutions; and (2) misunderstood and/or misapplied by the courts" (id. at 98, 101 [emphasis added]).

The legislative sponsor in the New York State Assembly noted that a section of the new legislation was "a response to the Court of Appeals recent holding Freedom Mtge. Corp. v Engel, 37 NY3d 1 (2021). This will restore longstanding law that made it clear that a lenders' discontinuance of a foreclosure action that accelerated a mortgage loan does not serve to reset the [*4]statute of limitations" (Assembly Mem in Support of 2022 NY Assembly Bill A7737B, Weinstein, Bill Jacket, L 2022, ch 821 at 9).

FAPA amended six laws: CPLR 203, CPLR 205, CPLR 213, CPLR 3217, RPAPL 1301 and General Obligations Law § 17-105. FAPA § 10 provides that it "shall take effect immediately and shall apply to all actions commenced on [a note and mortgage] in which a final judgment of foreclosure and sale has not been enforced" (FAPA § 10).

FAPA's Misunderstanding of Existing Law

The legislature's unprecedented attack upon the judiciary, with its assault upon the Court of Appeals holding in Engel, ignores the long line of cases which stood for the judicial standard that historically existed in this area of law—that is, that where there is a validly filed stipulation of discontinuance resolving a case, it is as if the case "had never been begun" (Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435, 444 [1928]).

In the ancient case of Loeb v Willis (100 NY 231, 235 [1885]), the Court of Appeals stated:{**83 Misc 3d at 609}

"The foreclosure action was discontinued and all the proceedings therein thus annulled. There was no longer any record or adjudication in that action which bound any one. By the discontinuance of an action the further proceedings in the action are arrested not only, but what has been done therein is also annulled, so that the action is as if it never had been." (Loeb, 100 NY at 235 [emphasis added]; see also Brown v Cleveland Trust Co., 233 NY 399, 406 [1922].)

The Court of Appeals, in Kilpatrick v Germania Life Ins. Co. (183 NY 163 [1905]), explained that in the face of a discontinuance, the election made in a foreclosure action to treat a mortgage debt as due only becomes "final and irrevocable after [the mortgagor's] change of position and assumption of legal obligations, the direct result of that election" (Kilpatrick, 183 NY at 168).

The Second Department had long adhered to the above rules. In Newman v Newman (245 AD2d 353 [2d Dept 1997]), the Court held,

"[w]hen an action is discontinued, it is as if it had never been; everything done in the action is annulled and all prior orders in the case are nullified (Brown v Cleveland Trust Co., 233 NY 399; Weldotron Corp. v Arbee Scales, 161 AD2d 708; Miehle Print. Press & Mfg. Co. v Amtorg Trading Corp., 278 App Div 682)" (Newman, 245 AD2d at 354).

In Golden v Ramapo Improvement Corp. (78 AD2d 648 [2d Dept 1980]), the Second Department noted that "[t]he general rule is that waiver of the right to accelerate the mortgage debt is discretionary with the mortgagee" (Golden, 78 AD2d at 650, citing Adler v Berkowitz, 254 NY 433, 437 [1930], and Odell v Hoyt, 73 NY 343 [1878]). The Court went on to hold, "That she [plaintiff] was under no restraint in changing her mind is likewise clear: only if a mortgagor can show substantial prejudice will a court in the exercise of its equity jurisdiction restrain the mortgagee from revoking its election to accelerate" (Golden, 78 AD2d at 650, citing [*5]Kilpatrick, 183 NY 163 [additional citations omitted]).

As noted by then Justice Daniel F. Luciano in Housberg v Baker (146 Misc 2d 960 [Sup Ct, Suffolk County 1990]), quoting a treatise on New York law:

" 'When an action is discontinued, it is as if the action{**83 Misc 3d at 610} had never been; all prior orders in the case are nullified. Once an action has been discontinued, there can be no judgment or appeal, and no objection to another action for the same relief on the ground that a prior action is pending.' (7A Carmody-Wait 2d, NY Prac § 47:42) Further, with respect to the New York rule it is stated that '[o]nce an action has been discontinued by consent or stipulation, it is [as though] the action never existed' . . . (7A Carmody-Wait 2d, NY Prac § 47:51.)" (Housberg, 146 Misc 2d at 962.)

The Second Department affirmatively declared the breaking away from this traditional rule in its determination in Christiana Trust v Barua (184 AD3d 140 [2d Dept 2020] [3-1 dissent]), in which the Court held that the mere discontinuance of an action, in and of itself, did not nullify any debt acceleration demanded in a foreclosure plaintiff's complaint. The Court rejected the claim that a discontinuance within six years of the action's acceleration of the full balance due on the note operated as a de-acceleration of the debt and declared that cases to the contrary "should no longer be followed" (Barua, 184 AD3d at 147). The dissent, however, noted that the Second Department's earlier holding in Engel "departed from its prior precedent, without acknowledgment or explanation," and that "[t]he new evidentiary burden imposed in [Engel] finds no support in the prior case law" (id. at 166-167).

The Court of Appeals, in Engel, simply rejected the different rule that had emerged in the Second Department (Engel, 37 NY3d at 30) and concluded that "[a] voluntary discontinuance withdraws the complaint and, when the complaint is the only expression of a demand for immediate payment of the entire debt, this is the functional equivalent of a statement by the lender that the acceleration is being revoked" (id. at 32).

So, indeed, it was the Second Department that altered this long-held judicial interpretation, which the Court of Appeals corrected when it issued its Engel decision and reaffirmed over 100 years of long-standing precedent. The state legislature's misguided and intimidating attack on the Court of Appeals holding in Engel can have a chilling effect on the administration of justice and judicial independence.^[FN*][*6]{**83 Misc 3d at 611}

The New CPLR 205-a (a)

Here, the defendant challenges the instant foreclosure action pursuant to the CPLR 205-a (a) "savings provision" as amended by FAPA, which now provides, in part:

"If an action upon [a note and mortgage] . . . 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 [3126], section [3215], rule [3216] and rule [3404] of this chapter, . . . the original plaintiff . . . may commence a new action . . . 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." (CPLR 205-a [a].)

FAPA also adds a new paragraph which states "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" (CPLR 205-a [a] [1]).

The New CPLR 213 (4)

CPLR 213 (4) at the time the action was commenced provides for a six-year statute of limitations for a foreclosure action. As amended by FAPA, CPLR 213 (4) includes a new paragraph (a) which provides that

"[i]n any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting{**83 Misc 3d at 612} that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated" (CPLR 213 [4]).

FAPA—Retroactivity

Any discussion of retroactivity must begin with the words of Justice Cardozo in Jacobus v Colgate (217 NY 235 [1916]), "The general rule is that statutes are to be construed as prospective only (27 Halsbury's Laws of England, p. 159). It takes a clear expression of the legislative purpose to justify a retroactive application." (Jacobus, 217 NY at 240 [citations omitted].)

Justice Cardozo went on to conclude: "To hold that this statute is retroactive would, therefore, be to give a remedy for ancient and forgotten wrongs." (Jacobus, 217 NY at 245.)

As set forth by the Supreme Court in Martin v Hadix (527 US 343 [1999]), in keeping with the landmark holding in Landgraf v USI Film Products (511 US 244 [1994]):

"The inquiry into whether a statute operates retroactively demands a commonsense, functional judgment about 'whether the new provision attaches new legal consequences to events completed before its enactment.' [Landgraf, 511 US] at 270, 114 SCt 1483. This judgment should be informed and guided by 'familiar considerations of fair notice, reasonable reliance, and settled expectations.' Ibid." (Martin, 527 US at 357-358.)

On numerous occasions, the Court of Appeals has held against retroactive application of amendments to statutes (see e.g. Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 [1998] [holding that "grave injury" amendments to Workers' Compensation Law did not apply retroactively to actions pending on effective date of amendment]). In James Sq. Assoc. LP v Mullen (21 NY3d 233 [2013]), the Court set forth the following rule:

" '[F]or centuries our law has harbored a singular distrust of retroactive statutes' (Eastern Enterprises v Apfel, 524 US 498, 547 [1998, Kennedy, J., dissenting in part]). The United States Supreme Court stated in Landgraf v USI Film Products that '[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly;{**83 Misc 3d at 613} settled expectations should not be lightly disrupted' (511 US 244, 265 [1994])." (Mullen, 21 NY3d at 246.)

The Court of Appeals recently addressed the issue of retroactivity in Gottwald v Sebert (40 NY3d 240 [June 13, 2023]). The Court there acknowledged "the strong presumption of prospective application" in the absence of a clear statement concerning retroactivity (Gottwald, 40 NY3d at 260, quoting Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 [1998]). This is so "unless the language expressly or by necessary implication requires it" (id. at 258, quoting Majewski, 91 NY2d at 584). Notably, that a statute "directs that it 'shall take effect immediately' . . . is not 'enough to require application [of that statute] to pending litigation,' " as such a "phrase is equivocal" (Gottwald, 40 NY3d at 259 [citations omitted]).

Similarly, in People v Galindo (38 NY3d 199 [2022]), Judge Rivera, writing for the Court, held that amendments to the speedy trial statute did not apply retroactively to criminal actions commenced before its effective date, noting that nothing in the text or legislative history supported such an interpretation (Galindo, 38 NY3d at 207).[*7]

The Appellate Division, Second Department, recently addressed this issue in VIP Pet Grooming Studio, Inc. v Sproule (224 AD3d 78 [2d Dept, Jan. 17, 2024]). There, the Court applied the analysis from the Gottwald decision and ultimately recognized that the retroactive application of the amendments at issue "to the pre-amendment complaint in this action could negatively impact substantive rights that VIP possessed at the time the action was commenced, which is a further ground in favor of the presumption against retroactivity" (VIP Pet Grooming Studio, Inc. v Sproule at 89, citing Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 370 [2020]). The Court acknowledged that "[h]ad the Legislature intended for the 2020 amendments to the anti-SLAPP statute to be applied retroactively, it could have said so" (id.).

In Matter of Mia S. (Michelle C.) (212 AD3d 17, 21 [2d Dept 2022], lv dismissed 39 NY3d 1118 [2023]), the Appellate Division, Second Department noted that legislation is subject to the presumption against retroactive application if it "affects substantive rights, such as a statute that 'would impair rights a party possessed when he [or she] acted, [or] increase a party's{**83 Misc 3d at 614} liability for past conduct, or impose new duties with respect to transactions already completed' " (Matter of Mia S., 212 AD3d at 21, citing Landgraf v USI Film Products, 511 US at 280; see also Matter of Regina Metro. Co., LLC, 35 NY3d at 365). The Court in Matter of Mia S. further held that the amendment in that case, which changed the statutory presumption of neglect based upon a parent's repeated use of drugs, could be applied retroactively because it "does not impose a burden or penalty upon individuals. It does the opposite; by placing a restriction on the kind of proof that can establish a prima facie case of neglect" (Matter of Mia S., 212 AD3d at 21).

Applying these interpretations to the instant case, it is clear that FAPA and its amendments are to be applied prospectively to actions commenced on or after December 30, 2022, FAPA's effective date. A foreclosure plaintiff who commenced an action prior to December 30, 2022, relied on the law on the commencement date in seeking to recover the amounts due as a result of the defendant's failure to pay his or her contractually agreed to mortgage obligations. For those actions "where acceleration occur[s] by virtue of the filing of a complaint in a foreclosure action, the noteholder's voluntary discontinuance of that action constitutes an affirmative act of revocation of that acceleration as a matter of law, absent an express, contemporaneous statement to the contrary by the noteholder" (Engel, 37 NY3d at 32). The Court of Appeals holding in Engel, mistakenly attacked on the law by the state legislature in the FAPA amendments, provided that the plaintiff could recommence an action.

Similarly, CPLR 205 (a), in effect at the time of commencement, authorized the recommencement of a new action. Here, the amendment affects the substantive rights of a party—by actually eliminating that right, if this amendment is to be applied retroactively.

There is no doubt that the amendments, if applied retroactively, would impair rights a party possessed when it acted, increase the party's liability for past conduct, and impose new duties with respect to transactions already completed, all contrary to Landgraf and Matter of Regina Metro.

Unlike the recent holding in Matter of Regina Metro., which found that the retroactive application of part F of the overcharge calculation amendments in the Housing Stability and [*8]Tenant Protection Act did not comport with due process, the effective date language was even more broadly expansive than that of FAPA. Therein, part F "shall take effect immediately {**83 Misc 3d at 615}and shall apply to any claims pending or filed on and after such date." (See L 2019, ch 36, § 1, part F, § 7.) The "any claims pending" language is not set forth in FAPA, and the Court of Appeals, in Matter of Regina Metro., still found that retroactive application implicated all three Landgraf retroactivity criteria.

Movants here seek dismissal by reviving legal defenses that did not exist or challenges that were time-barred at the time of the new legislation, without any showing that the legislative body considered the potential unfairness of the retroactive application. As universally acknowledged, "[r]evival is an extreme exercise of legislative power" (Hopkins v Lincoln Trust Co., 233 NY 213, 215 [1922, Cardozo, J.]).

FAPA § 10 provides that it "shall take effect immediately and shall apply to all actions commenced on [a note and mortgage] in which a final judgment of foreclosure and sale has not been enforced" (FAPA § 10). Similar sounding language has been found by the Court of Appeals to be ambiguous and lacking in intent to resurrect a claim (see 35 Park Ave. Corp. v Campagna, 48 NY2d 813 [1979]). As noted above, the Supreme Court, in Martin v Hadix, rejected the claim of retroactivity in enabling language that was even broader than that set forth herein.

This court is troubled by the fact that the state legislature ignores the bedrock "finality of judgment" case law and places importance upon the ministerial act of a referee in effectuating a final judgment of foreclosure and sale. It is the judgment which one appeals from (see CPLR 5501) and not the eventual sale. It is the judgment that settles the legal rights of the parties, not a future scheduled sale date. Indeed, the Court of Appeals has held that even new court holdings should not be applied retroactively to undo final judgments (see People ex rel. Cadogan v McMann, 24 NY2d 233 [1969]).

"A judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense which were or could have been litigated in the foreclosure action" (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2d Dept 2016]). The finality of judgments is an important aspect of real property jurisprudence (see Retained Realty, Inc. v Koenig, 166 AD3d 691 [2d Dept 2018]; Archibald v Wells Fargo Bank, N.A., 166 AD3d 573 [2d Dept 2018]).

This new legislative notion of "enforcement of the final judgment" is not a clear express prescription of the statute's reach—does the statutory notice of publication in the local paper (see RPAPL 231) demonstrate enforcement of the judgment? Once{**83 Misc 3d at 616} again, the state legislature is seemingly willing to cast aside long-standing rules of law without clearly stating in the legislation or offering support for the claim of retroactivity (compare Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y., 70 NY2d 451 [1987] [tax amendments were made expressly retroactive], with People ex rel. Beck v Graves, 280 NY 405, 410 [1939] [retroactive law unconstitutional] ["The constitutional validity of law is to be tested, not by what has been done under it, but by what may, by its authority, be done" (citations omitted)]).

After one painstakingly reads the 18 pages of the NYS senate sponsor's memo, one realizes the words "retroactive" or "to be applied retroactively" are nowhere to be found. Yet, the intention to overrule the holding in Engel is a constant refrain ("urgent need to pass this bill [*9]to overrule [Engel]"; "are amended to expressly overrule Engel"; "In Engel, the Court held . . . as a matter of law"; "Under Engel, this back-and-forth yo-yo effect"; a new section is added to "overrule Engel as violative of CPLR 201"; "new subdivision [CPLR 203 (h)] makes clear . . . contrary to Engel"; "CPLR 3217 [e] is expressly intended to overrule Engel" [Senate Introducer's Mem in Support of 2022 NY Senate Bill S5473D Bill Jacket, L 2022, ch 821 at 100, 103-105, 112]).

As to CPLR 205-a "[t]his new section . . . is hereby added to clarify the intended meaning of several words contained in the existing statute from which it is modeled." (Id. at 107.) This is a new section "as amended and reconstituted under CPLR 205-a (a)" and the sponsor memo appears to, in this particular respect, be a compilation of various appellate decisions over the years that were found by the foreclosure defense bar to be offensive. (Id.) The sponsor memo is written with a strong reliance upon either dissents or lower court holdings. The memo concludes this section by stating that the criticized case law "should not be followed." (Id. at 109.) Once again, in the discussion of the statute of limitations under CPLR 213 (4), the sponsor memo decrees that "[d]ecisions such as these should no longer be followed." (Id. at 110.)

In the height of irony, as with Engel, the sponsor's memo clearly states that long-existing case law "should no longer be followed" and, in essence, should be disregarded and treated "as if it had never been" (Loeb v Willis, 100 NY at 235).

Constitutionality

If necessary to reach the constitutionality of the retroactivity of the FAPA amendments, this court concludes that retroactivity{**83 Misc 3d at 617} does not comport with due process, guaranteed by the Fifth and Fourteenth Amendments to the Constitution, since there is no "legitimate legislative purpose" supporting the retroactive administration of FAPA (see Matter of Regina Metro., 35 NY3d at 375). As detailed above, the genesis for the FAPA amendments was the clear misunderstanding of the applicable Court of Appeals case law and the recent change of case interpretations from the Second Department. Such mischaracterization of long-standing case law cannot be the basis for a "legitimate purpose" supporting the retroactive application of FAPA. The absence of a rational basis justifying retroactive application of FAPA is an important consideration in seeking to apply it retroactively. As in James Sq. Assoc. LP v Mullen, the legislature fails to set forth a valid public purpose for the retroactive application of the amendments.

Importantly, as noted in Matter of Regina Metro.: "Moreover, retroactivity concerns are further heightened where, as here, the new statutory provisions 'affect[ ] contractual or property rights, matters in which predictability and stability are of prime importance' (Landgraf, 511 US at 271)." (Matter of Regina Metro., 35 NY3d at 382.)

As in Matter of Regina Metro., where no explanation was offered for retroactive application (id. at 383), here, the explanation offered is based upon a complete misapplication of existing case law. While the legislature can impose future burdens and grant new rights to alleviate public issues, without a rational justification for imposing new burdens on settled, substantial rights, retroactivity should not prevail. It is important to note that, unlike the [*10]legislation before the Court in Matter of Regina Metro., which was seen by the dissent (Wilson, J.) as economic regulation where the legislature is often afforded wide latitude, as set forth above, there is no judicial confusion which was sought to be corrected, nor does this case, in any way, implicate the long overruled holding of Lochner v New York (198 US 45 [1905]).

As explained by the Court of Appeals, in People v LaValle (3 NY3d 88 [2004]): "It is the responsibility of the judiciary to safeguard the rights afforded under our State [and Federal] Constitution[s]." (LaValle, 3 NY3d at 128.)

Some lower courts have recently addressed the issue of retroactivity. In U.S. Bank N.A. v Speller (80 Misc 3d 1233[A], 2023 NY Slip Op 51153[U] [Sup Ct, Putnam County, Oct. 31, 2023, Grossman, J.]), the court compared the issue at hand in{**83 Misc 3d at 618} Marrero v Crystal Nails (114 AD3d 101, 112-113 [2d Dept 2013])—that is, the 2008 amendment to CPLR 205 (a)—to the facts of the case at bar, and noted two similarities. First, the legislature did not state that either of the amendatory statutes should be retroactively applied. Additionally, pursuant to the text of each, the amendments were to "take effect immediately" (see L 2008, ch 156, § 2 [eff July 7, 2008]; FAPA § 10; see also Marrero, 114 AD3d at 111, citing McKinney's Cons Laws of NY, Book 1, Statutes § 52, Comment at 101-102 [1971 ed] ["it is the general rule that an amendment will have prospective application only, and will have no retroactive effect, unless its language clearly indicates that it shall receive a contrary interpretation" (footnotes omitted)]). The Speller court ultimately found that

"retro-active application of CPLR § 205-a (a) would not ensure 'equal' application of the law to all litigants but instead subject U.S. Bank [the plaintiff] to harshly unequal treatment in derogation of its vested rights by causing dismissal of a claim that was viable under the law existing at the time this action was commenced" (Speller, 80 Misc 3d 1233[A], 2023 NY Slip Op 51153[U], *32; see Newrez LLC v Kalina, 78 Misc 3d 1217[A], 2023 NY Slip Op 50249[U], *1 [Sup Ct, Albany County, Mar. 22, 2023] ["there is no indication that the legislative intent was to impair already vested rights"]; see also Nestor I LLC v Moriarty-Gentile, 78 Misc 3d 1233[A], 2023 NY Slip Op 50408[U] [Sup Ct, Suffolk County, May 2, 2023]; HSBC Bank USA, N.A. v Besharat, 80 Misc 3d 269, 283 [Sup Ct, Putnam County 2023]).

As warned by the Supreme Court, "[t]he Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration" and "[i]ts responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals" (Landgraf, 511 US at 266).

Given the above, the court now addresses each of the defendant's contentions in accordance with the statutes and regulations without application of FAPA amendments.

It is well settled that a process server's affidavit of service "constitute[s] prima facie evidence of proper service" (Duran v{**83 Misc 3d at 619} Milord, 126 AD3d 932, 932 [2d Dept 2015], citing Youngstown Tube Co. v Russo, 120 AD3d 1409, 1409 [2d Dept 2014]; [*11]see Deutsche Bank Natl. Trust Co. v Jagroop, 104 AD3d 723 [2d Dept 2013]; U.S. Bank N.A. v Hossain, 94 AD3d 979, 979 [2d Dept 2012]). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" (Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719, 719 [2d Dept 2014]; see City of New York v Miller, 72 AD3d 726, 727 [2d Dept 2010]; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [2d Dept 2013]; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743 [2d Dept 2011]). A defendant's bare and unsubstantiated denial of receipt is insufficient to rebut the presumption of proper service (see U.S. Bank N.A. v Tate, 102 AD3d 859, 859-860 [2d Dept 2013], citing Bank of N.Y. v Espejo, 92 AD3d 707, 708 [2d Dept 2012]).

"Service pursuant to CPLR 308 (4) may be used only where personal service under CPLR 308 (1) and (2) cannot be made with due diligence" (Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759, 759-760 [2d Dept 2013], citing Lemberger v Khan, 18 AD3d 447 [2d Dept 2005]). While the statute does not define due diligence, "it has been interpreted and applied on a case-by-case basis" (HSBC Mtge. Corp. [USA] v Hollender, 159 AD3d 883, 884 [2d Dept 2018], citing Barnes v City of New York, 51 NY2d 906, 907 [1980], and Estate of Waterman v Jones, 46 AD3d 63, 66 [2d Dept 2007]). The requirement "may be met with 'a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times' " (HSBC Mtge. Corp. [USA] v Hollender, 159 AD3d at 884, citing Estate of Waterman v Jones, 46 AD3d at 66; see also Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1048 [2d Dept 2015]).

Here, the affidavit of service demonstrates that the defendant was served at the mortgaged premises pursuant to CPLR 308 (4). It details three attempts to serve the defendant at different times (morning, afternoon and evening) and on different days, including a Saturday (see NY St Cts Elec Filing [NYSCEF] Doc No. 59). The submission further described the efforts made to ascertain the defendant's place of employment. Here, the process server's affidavit of service established, prima facie,{**83 Misc 3d at 620} that the defendant was served with the summons and complaint pursuant to CPLR 308 (4) by the "affix and mail" method (see HSBC Bank USA, N.A. v Dalessio, 137 AD3d 860, 863 [2d Dept 2016]; HSBC Bank USA v Desrouilleres, 128 AD3d 1013 [2d Dept 2015]; US Bank N.A. v Harding, 124 AD3d 766 [2d Dept 2015]; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845 [2d Dept 2008]).

In response, the defendant asserts that, at the dates and times of service, she would be "at work or on way [sic] home from work" and that December 24, 2022, was Christmas evening (NYSCEF Doc No. 37, Joerger aff in support para 8). Such is insufficient, however, to rebut the prima facie proof of the affidavit of service. The allegations are wholly conclusory, and notably lacking is any indication of the defendant's place of employment or proof of dates and times worked. She does not deny receipt of the summons and complaint or challenge the accuracy of the allegations in the affidavit of service, by swearing to specific facts to rebut the statements in the process server's affidavit (see State of New York v Mappa, 78 AD3d 926 [2d [*12]Dept 2010]). She does not deny the process server's claims that papers were affixed to the door and that the summons and complaint were mailed to the address, and does not deny receipt of that mailing.

The court further rejects the defendant's attempt to alter the facts of proper service. In essence, even though the process server complied with the statute and the applicable service method, the defendant complains that plaintiff should have been aware of the defendant's employment and attempted such there. Instead, as plaintiff demonstrates, its attempt to determine defendant's employment revealed "no current possible places of employment for the defendant" at that time (see NYSCEF Doc No. 25). As there is "no indication that . . . [defendant's] workplace was readily ascertainable, the plaintiff was not required to attempt to serve the defendant at his workplace" (Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759, 760 [2d Dept 2013] [internal quotation marks omitted], citing JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902, 903 [2d Dept 2010]).

Numerous holdings from the Second Department support the process server's actions where only three attempts are made at the residence (Amtrust-NP SFR, Venture, LLC v Emmel, 140 AD3d 993 [2d Dept 2016]; LaSalle Bank N.A. v Hudson, 139 AD3d 811 [2d Dept 2016]; Wells Fargo Bank, NA{**83 Misc 3d at 621} v Besemer, 131 AD3d 1047 [2d Dept 2015]; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777 [2d Dept 2015] [process server confirmed with a neighbor the defendant's residence]; Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768 [2d Dept 2013]; see Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759 [2d Dept 2013]; Lopez v DePietro, 82 AD3d 715, 716 [2d Dept 2011] [attempts to personally serve the defendant at his residence satisfied the due diligence requirement of CPLR 308 (4)]; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902 [2d Dept 2010]; Lemberger v Khan, 18 AD3d 447 [2d Dept 2005]).

Based on the above, the court finds that the defendant has failed to establish any defect in the service effected upon her pursuant to CPLR 308 (4), and that branch of her motion (No. 001) is denied.

The defendant's challenge to plaintiff's compliance with RPAPL 1303 fails, as the defendant's allegations fail to overcome the presumption of service of the proper RPAPL 1303 notice, as set forth in the affidavit of service (see Eastern Sav. Bank, FSB v Tromba, 148 AD3d 675 [2d Dept 2017]; Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2d Dept 2014]; U.S. Bank N.A. v Tate, 102 AD3d 859 [2d Dept 2013]). Additionally, a copy of the notice was annexed to plaintiff's submission. The evidence submitted by the defendant to the contrary is, at best, "speculative and conclusory" (OneWest Bank, FSB v Cook, 204 AD3d 1025, 1027 [2d Dept 2022]).

The defendant next contends that the instant action is untimely for several reasons. First, [*13]the defendant challenges plaintiff's reliance on the version of CPLR 205 (a) in effect when plaintiff commenced the instant action. "Under certain conditions, CPLR 205 (a) provides an additional six months in which to recommence a prior action that has been dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits" (Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 195 [2d Dept 2017]). A party may rely on this provision "provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period" (CPLR 205 [a]).{**83 Misc 3d at 622}

As discussed above, the prior action was dismissed as against the defendant on June 27, 2022. The instant action was thereafter commenced by filing on November 18, 2022, and a supplemental summons and amended complaint were thereafter filed on December 6, 2022. The affidavit of service upon the defendant shows that the process server's first attempt to serve the defendant was on December 21, 2022, and that after completing three service attempts, the server mailed the notices to the defendant on December 27, 2022, and filed the affidavit of service that same date. The defendant opines that service was not "complete" until 10 days after the affidavit was filed—in this case, January 6, 2023—therefore the plaintiff is not entitled to rely upon the "savings provision."

The plaintiff notes that the statutory text requires "that service upon defendant [be] effected within such six-month period" to allow plaintiff to utilize the provision (CPLR 205 [a] [emphasis added]), and contends that such was the case here. The court agrees. By definition, to "effect" means "to cause to come into being" and "to put into operation." (Merriam-Webster.com Dictionary, effect [https://www.merriam-webster.com/dictionary/effect].) To "complete," on the other hand, is "to bring to an end and especially into a perfected state" (Merriam-Webster.com Dictionary, complete [https://www.merriam-webster.com/dictionary/complete]). It follows, therefore, that in the process of service, an attempt at service is effecting such service while a final step in a process—here, filing an affidavit of service—is completing that act. In this case, that the plaintiff was timely in "effecting" service—that is, in its attempt in bringing about the result of completed service—upon the defendant within six months' dismissal of the prior action.

The defendant next contends that because the first action was dismissed pursuant to CPLR 3215 (c), constituting a neglect to prosecute, plaintiff is estopped from relying on the savings provision of CPLR 205 (a).

In a dismissal "for neglect to prosecute the action . . . the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation" (HSBC Bank USA, N.A. v Janvier, 187 AD3d 999, 1001 [2d Dept 2020]). Considering the length of delay, in itself, is not sufficient to establish such (see U.S. Bank Trust, N.A. v Moomey-Stevens, 168 AD3d 1169 [3d Dept 2019] [citations omitted]). Factors to{**83 Misc 3d at 623} consider in determining a "general pattern" aside from specific conduct include whether the action is dismissed with prejudice and whether costs are awarded (see Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 198 [2d Dept 2017]). Thus, an order noting dismissal of a complaint as "abandoned pursuant to CPLR 3215 (c)" or on the basis that plaintiff "failed to proceed to entry of judgment within one year of default" is not indicative of "specific conduct demonstrating 'a general pattern of delay in proceeding with the litigation' " (Wells Fargo Bank, N.A. v Eitani, 148 AD3d at 198-199, citing CPLR 205 [a], and Marrero v Crystal Nails, 114 AD3d 101, 111 [2d Dept 2013]).[*14]

This court's June 27, 2022 order lacks any reference to specific conduct, and the court finds that the determination does not rise to the level of "general pattern of delay." As such, the court finds that dismissal of the first action pursuant to CPLR 3215 (c) was not the result of plaintiff's neglect to prosecute and, therefore, the instant action is timely as plaintiff was entitled to rely on the savings provision of CPLR 205 (a).

Finally, the court addresses the defendant's allegations that plaintiff's complaint should be dismissed as violative of New York Banking Law § 6-l. This legislation imposes certain limitations on the issuance of home loans and prohibits "high-cost home loans" (see Emigrant Bank v Brown, 175 AD3d 1488, 1489 [2d Dept 2019]). As applicable herein, a home loan is a "high-cost home loan" under Banking Law § 6-l if, among other things, the annual percentage interest rate exceeds eight percentage points over the yield of treasury securities with comparable maturity periods (Banking Law § 6-l [1] [g] [i]) or the total points and fees charged exceed five percent of the total loan amount (Banking Law § 6-l [1] [g] [ii]). The "total loan amount" is "the principal of the loan minus those points and fees . . . that are included in the principal amount" (Banking Law § 6-l [1] [h]). "Points and fees" include "all compensation paid directly or indirectly to a mortgage broker" and "[t]he cost of all premiums financed by the lender, directly or indirectly, for any credit life," and certain items, such as fees for title examination, title insurance, and property surveys, to be included "only if the lender receives direct or indirect compensation in connection with the charge or the charge is paid to an affiliate of the lender" (Banking Law § 6-l [1] [f]; Emigrant Bank v Brown, 175 AD3d at 1489).{**83 Misc 3d at 624}

The defendant alleges that the loan financed more than 100% of the purchase price of the residence herein and, as a result, "all of the expenses listed on the HUD-1 can be argued to be properly includable [sic]." Nevertheless, the defendant excludes the buyer's attorney fee, and concludes that the points and fees total $15,330.07, which exceed five percent of the total loan amount. Therefore, she concludes, the loan is high-cost and was issued in violation of Banking Law § 6-l. The plaintiff, in opposition, notes that the defendant fails to demonstrate any support for her claim that the loan transaction was 100% financing, as the loan amount was $280,000.00 and the purchase price according to the HUD was $350,000.00 and no documentation has been submitted demonstrating the specifics, if any, of a second loan.

On the contrary, according to the plaintiff, the total applicable points and fees in this case should not include the recording tax expenses stamp (see Banking Law § 6-l [1] [f]; Silver v CitiMortgage, Inc., 162 AD3d 812, 813 [2d Dept 2018]), as well as the fees for flood insurance, although no support is provided for this presumption. At any rate, even if the flood insurance expense is included, the points and fees would total $12,290.07. The originating amount of the loan of $280,000.00 reduced by $12,290.07 provides a total loan amount of $267,709.93, with an applicable five percent threshold of $13,385.50. Here, according to the HUD-1 statement, the allowable points and fees paid by the defendants did not exceed five percent of the total loan amount, being less than the maximum amount allowed (see Tribeca Lending Corp. v Lawson, 159 AD3d 936 [2d Dept 2018]; see also Silver v CitiMortgage, Inc., 162 AD3d [*15]812 [2d Dept 2018]). As the defendant has failed to demonstrate that the loan was a "high-cost home loan" within the meaning of Banking Law § 6-l (1) (g), and that the loan failed to conform to the statutory requirements of such a loan (see Banking Law § 6-l [2] [l] [i], [ii]; [2-a] [a]; cf. Tribeca Lending Corp. v Lawson, 159 AD3d 936 [2d Dept 2018]), this branch of defendant's motion is denied.

Given the above, the defendant's motion (No. 001) is denied in its entirety.