You are here: / / TWO VOLUNTARY DISCONTINUANCES OF TWO SUCCESSIVE FORECLOSURE ACTIONS TWICE...
,

TWO VOLUNTARY DISCONTINUANCES OF TWO SUCCESSIVE FORECLOSURE ACTIONS TWICE REVOKED THE ACCELERATION OF THE DEBT RENDERING THE THIRD FORECLOSURE ACTION TIMELY (FIRST DEPT).

The First Department, reversing Supreme Court based upon the February, 2021 Court of Appeals ruling, determined two voluntary discontinuances of two successive foreclosure actions twice revoked the acceleration of the debt, rending the third foreclosure action timely:

… [O]n February 18, 2021, the Court of Appeals issued its decision in Freedom Mtge. Corp v Engel, — NY3d —, 2021 NY Slip Op 01090 (2021), holding, inter alia, that “where acceleration occurred by virtue of the filing of a complaint in a foreclosure action, the noteholder’s voluntary discontinuance of that action constitutes an affirmative act of revocation of that acceleration as a matter of law, absent an express, contemporaneous statement to the contrary by the noteholder” (Freedom Mtge., at *6). Thus, contrary to defendants’ argument, the September 2013 voluntary discontinuance of the 2009 first foreclosure action did constitute an “affirmative act,” within six years, thereby revoking the prior election to accelerate. A second foreclosure action was commenced in October 2013 and discontinued in September 2017. To the extent there is a question surrounding plaintiff’s reason for discontinuing the second foreclosure action and whether that reason constituted a “contemporaneous statement” that they were not seeking to de-accelerate the debt, it does not change the fact that the third foreclosure action is timely because it was commenced within six years of the date of acceleration, which was October 2013. U.S. Bank Trust, N.A. v Boktor, 2021 NY Slip Op 02124, First Dept 4-6-21

 

You might also like
PLAINTIFF, A SOPHISTICATED INVESTOR, DID NOT STATE A CAUSE OF ACTION FOR FRAUD ON THE PART OF THE COMPANY IN WHICH PLAINTIFF INVESTED AND PURCHASED A CONTROLLING INTEREST, PLAINTIFF HAD THE MEANS TO DISCOVER THE TRUTH BEHIND ANY ALLEGED FALSE CLAIMS.
THE SEARCH WAS NOT INCIDENT TO ARREST AS THE SUPPRESSION COURT RULED, CASE REMITTED FOR CONSIDERATION OF AN ALTERNATE GROUND FOR A VALID SEARCH WHICH WAS ARGUED BUT NOT RULED UPON BELOW. ​
POST-JUDGMENT MOTION TO VACATE A SENTENCE IMPOSED UNDER AN INCORRECT PREDICATE-FELONY-DESIGNATION THAT WAS LESS SEVERE THAN THE SENTENCE REQUIRED BY THE CORRECT PREDICATE-FELONY DESIGNATION PROPERLY DENIED (FIRST DEPT).
THE PROOF THE NOTICE OF FORECLOSURE WAS MAILED TO DEFENDANT WAS INADEQUATE AND THE NOTICE DID NOT INCLUDE A STATEMENT REQUIRED BY RPAPL 1304; THEREFORE THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​
PLAINTIFF’S TESTIMONY THAT THE STEP LADDER WOBBLED CAUSING HIM TO FALL WAS SUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR IN THIS LABOR LAW 240 (1) ACTION, DESPITE THE LACK OF WITNESSES TO THE FALL, HEARSAY EVIDENCE IN THE ACCIDENT REPORT, AND A CONCLUSORY EXPERT AFFIDAVIT (FIRST DEPT).
Denial of Application for Renewal of General Contractor’s Registration Based Upon a Conviction Which Preceded a Prior Renewal Was Arbitrary and Capricious
QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT).
THE FACT THAT PLAINTIFF SLIPPED AND FELL DOWN A PERMANENT CONCRETE STAIRWAY DID NOT REMOVE THE INCIDENT FROM THE REACH OF LABOR LAW 240(1); PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF ALLEGED SHE WAS SEXUALLY ASSAULTED BY DEFENDANT’S EMPLOYEE;... RESPONDENT CITY DID NOT DEMONSTRATE THE FOIL REQUEST WOULD INTERFERE WITH LAW...