U.S. Bank Trust N.A.. v Ford

Supreme Court, Nassau County

Decided on April 10, 2026

Index No. 602049/2024

Sarika Kapoor, J.

NYSCEF docs. 1, 3, 6, 7, 36, 40-63 were read and considered in deciding this motion.

Relief Requested

The plaintiff moves to confirm a referee's report, for a judgment of foreclosure and sale, for the distribution of sale proceedings pursuant to RPAPL 1354, and to deem "the service of nunc pro tunc as if service of process upon the defendants Kennth Ford a/k/a Kennth Ford, Jr., a/k/a Kenneth James Ford, has been completed within thirty (30) days after the filing of the Notice of Pendency herein and that the provisions of CPLR 6512 be ratified."

Background

On February 5, 2024, the plaintiff commenced this action to foreclose a mortgage and filed a notice of pendency against the subject property on that same date (NYSCEF 1, 3). On or about April 22, 2024, the plaintiff served the summons, complaint, and notice of pendency upon [*2]the defendant Kenneth Ford a/k/a Kenneth Ford, Jr., a/k/a Kenneth James Ford (hereinafter Kenneth Ford) (NYSCEF 6, 7). In an order entered September 9, 2025, this Court granted the plaintiff's motion, inter alia, for leave to enter a default judgment against Kenneth Ford and for an order of reference (NYSCEF 36). On November 24, 2025, the plaintiff filed an additional notice of pendency (NYSCEF 40).

Motion Sequence 002

The plaintiff moves to confirm the referee's report, for a judgment of foreclosure and sale, for the distribution of sale proceedings pursuant to RPAPL 1354, and to deem "the service of nunc pro tunc as if service of process upon the defendants Kennth Ford a/k/a Kennth Ford, Jr., a/k/a Kenneth James Ford, has been completed within thirty (30) days after the filing of the Notice of Pendency herein and that the provisions of CPLR 6512 be ratified."

In an attorney affirmation submitted in support of the motion, counsel for the plaintiff states, inter alia: "It has come to the attention of Plaintiff that Kenneth Ford was not served correctly with the Summons, Complaint and Notice of Pendency on defendants. Plaintiff respectfully requests that service on the defendants, be deemed nunc pro tunc as if service of process upon the defendants, has been completed within thirty (30) days after the filing of the Notice of Pendency filed on February 5, 2024." Counsel for the plaintiff has not made any arguments in support of its request for this relief.

The motion is unopposed.

Discussion

This Court begins with that branch of the plaintiff's motion which is to deem "the service of nunc pro tunc as if service of process upon the defendants Kennth Ford a/k/a Kennth Ford, Jr., a/k/a Kenneth James Ford, has been completed within thirty (30) days after the filing of the Notice of Pendency herein and that the provisions of CPLR 6512 be ratified."

RPAPL 1331 provides, in relevant part, that at least 20 days before a final judgment directing a sale in a mortgage foreclosure action, the plaintiff must file "a notice of pendency of the action" (see U.S. Bank Trust, N.A. v Green-Stevenson, 208 AD3d 1202, 1204 [2d Dept 2022]; Nationstar Mtge. LLC v Dessingue, 155 AD3d 1152, 1153 [3d Dept 2017]).

CPLR 6512 provides, in relevant part, that "[a] notice of pendency is effective only if, within thirty days after filing, a summons is served upon the defendant."

CPLR 6516(c) provides that, "[e]xcept as provided in [CPLR 6516(a)], a notice of pendency may not be filed in any action in which a previously filed notice of pendency affecting the same property . . . had . . . become ineffective." As an exception to the general rule, however, CPLR 6516(a) provides that, "[i]n a foreclosure action, a successive notice of pendency may be filed to comply with [RPAPL 1331], notwithstanding that a previously filed notice of pendency in such action . . . has become ineffective because service of a summons had not been completed within the time limited by [CPLR 6512], whether or not such expiration or such ineffectiveness has been determined by the court" (see U.S. Bank Trust, N.A. v Green-Stevenson, 208 AD3d at 1203-1204).

In this case, the plaintiff filed a notice of pendency on February 5, 2024 (NYSCEF 5), and service of the summons, complaint, and notice of pendency upon Kenneth Ford occurred [*3]more than 30 days later, on or about April 22, 2024 (NYSCEF 6, 7). Therefore, the notice of pendency filed on February 5, 2024, became ineffective (see CPLR 6512; NYCTL 199-1 Trust v Chalom, 47 AD3d 779, 780 [2d Dept 2008]).

The plaintiff filed an additional notice of pendency on November 24, 2025 (NYSCEF 40). Pursuant to CPLR 6516(a), the filing of this additional notice of pendency was sufficient to satisfy the requirements of RPAPL 1331. Under these circumstances, although the notice of pendency filed on February 5, 2024, became ineffective when the plaintiff failed to serve the summons within 30 days thereafter, such failure does not preclude this Court from granting a motion for a judgment of foreclosure and sale in light of the additional notice of pendency filed on November 24, 2025, and the provisions of CPLR 6516(a) (see U.S. Bank Trust, N.A. v Green-Stevenson, 208 AD3d at 1204; cf. NYCTL 199-1 Trust v Chalom, 47 AD3d at 780; Slutsky v Booming Grove Inn, Inc., 147 AD2d 208, 212 [2d Dept 1989]).

As previously stated, the plaintiff's counsel does not make any arguments in support of the plaintiff's request to deem "the service of nunc pro tunc as if service of process upon the defendants Kennth Ford a/k/a Kennth Ford, Jr., a/k/a Kenneth James Ford, has been completed within thirty (30) days after the filing of the Notice of Pendency herein and that the provisions of CPLR 6512 be ratified." The Court does not otherwise see any reason to grant this relief, especially in light of the fact that such relief is unnecessary, as CPLR 6516(a) and the additional notice of pendency filed on November 24, 2025, permit the plaintiff to obtain a judgment of foreclosure and sale despite the fact that the notice of pendency filed on February 5, 2025, has become ineffective (see generally Nationstar Mtge. LLC v Dessingue, 155 AD3d 1152, 1154 [3d Dept 2017]). Accordingly, this branch of the plaintiff's motion should be denied.

With respect to the remaining branches of the plaintiff's motion, the plaintiff has established its entitlement to the relief sought.

Conclusion

Based on the foregoing, it is hereby,

ORDERED that the branch of the plaintiff's motion which is to deem "the service of nunc pro tunc as if service of process upon the defendants Kennth Ford a/k/a Kennth Ford, Jr., a/k/a Kenneth James Ford, has been completed within thirty (30) days after the filing of the Notice of Pendency herein and that the provisions of CPLR 6512 be ratified" is DENIED; and it is further,

ORDERED that the remaining branches of the plaintiff's motion are GRANTED.

The proposed order as annexed to the moving papers shall be forwarded to the Foreclosure Department of this Court, and should it be found to be consistent with the terms of this and prior orders, it shall be executed upon completion of such review.

This constitutes the decision and order of the Court.

Dated: April 10, 2026

Mineola, New York

E N T E R:

HON. SARIKA KAPOOR, A.J.S.C.