by the defendant David Cohan, in an action to foreclose a
mortgage, from an order of the Supreme Court (Gloria M.
Dabiri, J.), dated July 30, 2014, and entered in Kings
County, which denied his motion pursuant to CPLR 3211(a)(5)
to dismiss the complaint insofar as asserted against him as
& Scheuerman, New York, NY (Jonathon D. Warner and Karl
E. Scheuerman of counsel), for appellant.
McGlinchey Stafford, PLLC, New York, NY (Edward E. Groves of
counsel), for respondent.
RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS,
JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.
OPINION & ORDER
appeal, we are asked to answer two questions with respect to
whether CPLR 205(a) protects the plaintiff in this mortgage
foreclosure action from the preclusive consequence of the
statute of limitations.
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. The first question in this case
is whether a prior action to foreclose the same mortgage was
dismissed for neglect to prosecute, a category of dismissal
that renders CPLR 205(a) inapplicable. We answer this
question in the negative, concluding that the prior action
was not dismissed for neglect to prosecute.
second question is more novel. We must determine whether the
plaintiff in this mortgage foreclosure action, which was
assigned the note and mortgage during the pendency of the
prior foreclosure action, is entitled to the savings
provision-or grace period-of CPLR 205(a) even though the
prior action was commenced by a prior holder of the note. For
the reasons that follow, we conclude that a plaintiff in a
mortgage foreclosure action which meets all of the other
requirements of the statute is entitled to the benefit of
CPLR 205(a) where, as here, it is the successor in interest
as the current holder of the note.
and Procedural Background
20, 2005, the defendant Doron Eitani of Miami, Florida,
purchased a residential property located at 2920 Avenue N in
Brooklyn. In order to finance the purchase, Eitani executed
and delivered an adjustable rate note to Argent Mortgage
Company, LLC (hereinafter Argent), wherein Eitani promised to
repay the sum of $560, 000, with interest. The note was
secured by a mortgage on the property.
three months after closing on the house, Eitani defaulted on
the note and mortgage. By letter dated September 2, 2005, the
servicer for the subject loan, Countrywide Home Loans
Servicing LP, advised Eitani that the loan was in default
and, if the default was not cured by October 7, 2005,
"the mortgage payments [would] be accelerated with the
full amount remaining accelerated and becoming due and
payable in full." To date, Eitani has failed to cure the
default. Thus, the subject mortgage loan has been in default
for more than 11 years.
about November 16, 2005, Argent commenced a foreclosure
action (hereinafter the prior action). On June 6, 2008, after
unsuccessful attempts to resolve the default, Argent obtained
an order of reference based upon Eitani's default in
answering the complaint. However, Argent did not obtain a
judgment of foreclosure and sale.
the course of the prior action, and the mortgage foreclosure
crisis of 2008, Argent assigned and delivered the subject
note and mortgage to Wells Fargo Bank, N.A., as trustee, in
trust for the registered holders of Park Place Securities,
Inc., asset-backed pass-through certificates, series
2005-WCW1 (hereinafter Wells Fargo), as reflected in an
assignment dated January 24, 2008, and recorded on February
March 23, 2011, while the prior action was still pending,
Eitani conveyed by deed the subject property to the
defendant-appellant, David Cohan, who then became the owner
March 2, 2012, Shapiro, DiCaro & Barak, LLP, of
Rochester, were substituted for Steven J. Baum, P.C., of
Amherst, as attorneys for the plaintiff.
August 1, 2013, the Administrative Judge for Civil Matters in
the Supreme Court, Kings County, on a routine clearing of the
docket, issued an order directing dismissal of the prior
action "as abandoned pursuant to CPLR 3215(c), without
costs or prejudice." While the handwritten caption of
the form dismissal order listed Argent as the plaintiff, at
that time Wells Fargo had been the holder of the note and
mortgage for well over five years.
than four months later, on November 25, 2013, Wells Fargo,
the holder of the note and mortgage, commenced the instant
foreclosure action in accordance with CPLR 205(a). Once
again, Eitani failed to appear in the action.
Cohan, the current owner of the property, first appeared in
the instant action by moving pursuant to CPLR 3211(a)(5) to
dismiss the complaint insofar as asserted against him on the
ground that it was time-barred. Cohan argued that the action
was time-barred by the applicable six-year statute of
limitations because it was commenced more than eight years
after the mortgage was accelerated in 2005.
opposition, Wells Fargo, which became the holder of the note
and mortgage long before the prior action was dismissed,
argued that the action is not time-barred because, pursuant
to the savings provision of CPLR 205(a), the instant action
was timely "recommenced" within six months of the
prior action's dismissal.
reply, Cohan contended that the savings provision of CPLR
205(a) was not available to Wells Fargo both because the
prior action was dismissed for failure to prosecute, and
because Wells Fargo was not the plaintiff in that action.
Supreme Court denied Cohan's motion, concluding that CPLR
205(a) was applicable and thus the action was timely
commenced within six months of ...