Supreme Court, Suffolk County, November 25, 2025

OPINION OF THE COURT

C. Stephen Hackeling, J.

{**88 Misc 3d at 919}Upon the reading and filing of the order to show cause with temporary restraining order filed by defendants Debra Ann Lobasso Hulse and Wayne L. Hulse (collectively defendants) filed on October 7, 2025 (NY St Cts Elec Filing [NYSCEF] Doc Nos. 104-121); and plaintiff's opposition filed on October 20, 2025 (NYSCEF Doc No. 126); and upon the hearing conducted before the Honorable C. Stephen Hackeling, J.S.C., on October 22, 2025; it is ordered that defendants' order to show cause seeking a stay and other relief (mot seq No. 003) is denied in its entirety; and it is further ordered that plaintiff and referee in foreclosure are directed to forthwith proceed to [*2]sale of the subject premises with any and all time restrictions imposed by RPAPL 1351 extended for six months from the date hereof; and it is further ordered that a copy of this order with notice of entry should be served upon all parties entitled to notice.

Decision

Debra Ann Lobasso Hulse also known as Debra Lobasso Hulse also known as Debra A. Lobasso also known as Debra Ann Lobasso also known as Debra Ann Hulse also known as Debra Hulse and Wayne L. Hulse also known as Wane Hulse (defendants), by their counsel, filed a verified answer to the above-captioned complaint on July 17, 2023 (NYSCEF Doc No. 47), asserting general denials and 12 affirmative defenses. The verified answer did not include a statute of limitations affirmative defense.

Summary judgment was granted to plaintiff on September 6, 2024, and a final judgment of foreclosure and sale was granted on January 2, 2025, and entered March 10, 2025, with notice of entry. The judgment of foreclosure and sale was not appealed, and it became a final order on April 9, 2025—long before defendants filed the order to show cause dated October 7, 2025 (mot seq No. 003). The order to show cause stayed the fourth scheduled foreclosure sale.

Defendants asserted during oral argument that the recently enacted Foreclosure Abuse Prevention Act (L 2022, ch 821 [hereafter FAPA]) allows for a statute of limitations challenge even if such a defense was never raised as a joined issue and even at this late date. Section 10 of FAPA provides: "This act shall take effect immediately and shall apply to all actions . . . in which a final judgment of foreclosure and sale has not been enforced."

Such a judicial statutory construction of FAPA espoused by defendants is in direct contradiction of CPLR 3018 (b) and {**88 Misc 3d at 920}3211 (e) which provide that a section 3211 (a) (5) statute of limitations defense is "waived unless raised . . . in the responsive pleading" (Emigrant Bank v McDonald, 197 AD3d 453 [2d Dept 2021]). By not amending section 3211 (e)'s waiver provision within FAPA it can only be statutorily construed that section 10 only applies to cases where a waiver is not established. The fundamental underpinning of New York civil practice jurisprudence is that courts only resolve issues that have been joined in the pleadings. In construing new enactments relating to general provisions of settled law it is assumed that later enactments are intended to fit into previously existing laws and policy. (See McKinney's Cons Laws of NY, Book 1, Statutes § 223, citing Matter of Rademaker, 166 Misc 201, 206 [Sur Ct, Kings County 1938]; see also Statutes § 221, citing Town of Islip v Powell, 78 Misc 2d 1007 [Sup Ct, Suffolk County 1974].)

Additionally, the New York Legislature formally ratified the common-law doctrines of final judgment, res judicata and collateral estoppel in section 58 of the Statutes law which provides: "A judgment, after it becomes final, may not be affected by subsequent legislation." "A judgment . . . after the exhaustion of all avenues of review by appeal . . . may not be affected by subsequent legislation." (Statutes § 58, Comment; see People ex rel. H.D.H. Realty Corp. v Murphy, 194 App Div 530 [1st Dept 1920], affd 230 NY 654 [1921].) Again, FAPA as a coequal subsequent statute must be construed in a manner which is consistent with Statutes § 58.

[*3]

Putting aside the CPLR and Statutes arguments, this court has previously opined that the retroactive application of section 10 as to "final orders" is unconstitutional under the United States and New York Constitutions (see Wilmington Trust, N.A. v Gawlowski, 81 Misc 3d 683, 692 [Sup Ct, Suffolk County 2023]) and the numerous appellate cases and authorities cited therein which hold that the final order/res judicata doctrines establish a "vested right" constitutional bar to retroactive application of FAPA in such instances. The court notes that the Second Department, Appellate Division has opined in a post FAPA decision that the failure of a foreclosure defendant to move pursuant to CPLR 5015 to vacate a final order precludes the last-minute raising of a statute of limitations defense. (Wells Fargo Bank, N.A. v Dubarry, 230 AD3d 1187 [2d Dept 2024].)

Lastly, defendants' actions have created much of the delay in the prosecution of the three foreclosure actions involving these parties commencing in 2008. This delay resulted in plaintiff {**88 Misc 3d at 921}advancing 17 years of tax and insurance payments and is sufficient to trigger this court's equitable powers to declare that defendants are barred by the laches doctrine from obtaining relief, especially relief that is equitable in nature. Under this factual scenario, the court is not constrained to deviate from the law of the case doctrine and dismiss this case. (See generally U.S. Bank Trust, N.A. v Longo, 227 AD3d 1122 [2d Dept 2024]; Hudson City Sav. Bank v Hossain, 181 AD3d 572 [2d Dept 2020]; see also Deutsche Bank Natl. Trust Co. v Fales, 83 Misc 3d 1223[A], 2024 NY Slip Op 50786[U] [Sup Ct, Suffolk County 2024].)

Accordingly, defendants' application to stay the foreclosure sale and to dismiss plaintiff's complaint is denied.