On August 5, the New York Appellate Division, Second Department affirmed a Kings County Supreme Court order granting summary judgment dismissing a mortgage foreclosure complaint as time-barred. The action arose from a 2001 note secured by a mortgage on a Brooklyn property that the borrower allegedly defaulted on in December 2001. The court held that the six-year statute of limitations began to run in 2002, when a prior foreclosure action accelerated the mortgage debt by electing in the complaint to call due the entire amount secured by the mortgage. The court noted that the current foreclosure action was commenced in 2013, more than six years later.

The court rejected the plaintiff’s argument that the prior action’s voluntary discontinuance reset the limitations period, holding that under New York’s Foreclosure Abuse Prevention Act, the discontinuance did not de-accelerate the mortgage or “revive or reset” the statute of limitations. The court also rejected the plaintiff’s challenges to the law’s retroactive application and constitutionality, holding that the plaintiff failed to raise a triable issue as to whether alleged payments after the 2002 action validly revoked acceleration of the debt. The court further concluded that the law-of-the-case doctrine did not bar reconsideration because the passage of the Foreclosure Abuse Prevention Act was a change in law warranting review of whether the action was untimely based on the 2002 acceleration.