Calendar Date: September 6, 2017
Englert, Coffey, McHugh & Fantauzzi, LLP, Schenectady
(Peter V. Coffey of counsel), for appellant.
Polowy, LLC, Westbury (Stephen J. Vargas of counsel), for
Before: Peters, P.J., Garry, Rose, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Caruso, J.), entered
March 7, 2016 in Schenectady County, which, among other
things, granted plaintiff's motion for summary judgment.
2007, defendant Lori Dessingue (hereinafter defendant)
executed a promissory note secured by a mortgage on real
property located in Schenectady County. Defendant later
entered into a loan modification agreement, and the note and
mortgage were assigned to BAC Home Loan Servicing, LP. When
defendant defaulted on the payments owed under the loan
modification agreement, BAC commenced a mortgage foreclosure
action (hereinafter the BAC action) and filed a notice of
pendency (see CPLR 6511 [a]; RPAPL 1331). In March
2011, Supreme Court (Giardino, J.) dismissed the BAC action,
without prejudice, on the ground of noncompliance with the
mandatory settlement conference provisions of CPLR 3408.
the note and mortgage were assigned to plaintiff. In February
2015, plaintiff commenced this foreclosure action and filed a
notice of pendency. Defendant answered and asserted as an
affirmative defense that the complaint should be dismissed
because plaintiff was prohibited from filing a second notice
of pendency following the dismissal of the BAC action and,
thus, could not comply with the filing requirement
established by RPAPL 1331. Plaintiff moved for summary
judgment, and defendant cross-moved for summary judgment
dismissing the complaint upon this affirmative defense.
Supreme Court granted plaintiff's motion and denied
defendant's cross motion. Defendant appeals.
support of its motion for summary judgment, plaintiff
submitted the assignment, the mortgage, the unpaid note, the
loan modification agreement and an affidavit from
plaintiff's document execution specialist asserting that
defendant had been in default on the note since 2009. These
submissions established plaintiff's prima facie
entitlement to judgment as a matter of law and shifted the
burden to defendant "to raise a question of fact as to a
bona fide defense to foreclosure" (HSBC Bank USA,
N.A. v Szoffer, 149 A.D.3d 1400, 1401  [internal
quotation marks and citation omitted]; see Citibank, NA v
Abrams, 144 A.D.3d 1212, 1215 ; PHH Mtge.
Corp. v Davis, 111 A.D.3d 1110, 1111 , lv
dismissed 23 N.Y.3d 940');">23 N.Y.3d 940 ).
does not challenge plaintiff's prima facie proof, but
instead contends that plaintiff was statutorily barred from
filing the requisite notice of pendency. RPAPL 1331 provides
that at least 20 days before a final judgment directing a
sale in a mortgage foreclosure action, the plaintiff must
file "a notice of the pendency of the action, which
shall specify, in addition to other particulars required by
law, the date of the mortgage, the parties thereto and the
time and place of recording." Defendant asserts that the
"no second chance" rule operates here to preclude
plaintiff from complying with this provision (Matter of
Sakow, 97 N.Y.2d 436, 442  [internal quotation
marks omitted]). As codified in CPLR 6516 (c), this rule
states that, "[e]xcept as provided in subdivision (a) of
[CPLR 6516], a notice of pendency may not be filed in any
action in which a previously filed notice of pendency
affecting the same property had been cancelled or vacated or
had expired or become ineffective."
agree with Supreme Court that there is no merit in
defendant's contention. As this is a mortgage foreclosure
action, the argument fails by application of CPLR 6516 (a).
In such an 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 or in a
previous foreclosure action has expired pursuant to [CPLR
6513] or has become ineffective" (CPLR 6516 [a]). Here,
the record reveals that the notice of pendency filed in the
BAC action was never renewed and therefore expired by
operation of law three years after the date on which it was
filed. Thus, the statutory exception to the "no second
chance" rule applies (see CPLR 6513; Matter
of Sakow, 97 N.Y.2d at 442; MCK Bldg. Assoc. v St.
Lawrence Univ., 5 A.D.3d 911, 912 ). Defendant
argues that the statutory exception does not apply to a
canceled notice of pendency. Assuming without deciding that
this argument is correct, nothing in the record indicates
that the notice of pendency in the BAC action was canceled as
part of the order dismissing the complaint, or that the
parties to that action moved for or stipulated to such a
cancellation (see CPLR 6514; compare
CitiMortgage, Inc. v Lottridge, 143 A.D.3d 1093, 1093
; Ampul Elec., Inc. v Village of Port Chester,
96 A.D.3d 790, 791 , lv dismissed 19 N.Y.3d
1063 ). Where, as here, a prior notice of pendency has
expired, the governing statute allows the filing of a
successive notice of pendency (see CPLR 6516 [a];
Sudit v Labin, 148 A.D.3d 1077, 1078 ).
CPLR 6516 (c) only operates to prohibit the filing of a
successive notice of pendency in the same action in
which a notice of pendency affecting the same property has
previously been filed (see Romanoff v Romanoff, 125
A.D.3d 415, 415 ; Guttman v Gutman, 78 A.D.3d
779, 781 ; Vincent C. Alexander, Practice Commentaries,
McKinney's Cons Laws of NY, Book 7B, CPLR 6516 at
566-567; see also Matter of Sakow, 97 N.Y.2d at 443;
Bonded Concrete v Johnson, 280 A.D.2d 758, 759-760
). Here, the second notice of pendency was filed in an
entirely separate action, commenced by a different plaintiff,
from that in which the first notice of pendency was filed. In
this case, the purpose of the "no second chance"
rule - that is, "to encourage procedural diligence by
the plaintiff as a counterweight to the extraordinary ease
with which a notice of pendency can hinder the marketability
of the defendant's property" - is not implicated
(Vincent C. Alexander, Practice Commentaries, McKinney's
Cons Laws of NY, Book 7B, CPLR 6516 at 567), and the
statutory prohibition against successive notices of pendency
does not apply (see Deutsch v Grunwald, 63 A.D.3d
872, 873-874 ). Thus, we need not address
defendant's remaining contentions.
Peters, P.J., Rose, Aarons and ...