A MOTION TO RENEW A SUMMARY JUDGMENT MOTION IS THE APPROPRIATE VEHICLE FOR ADDRESSING A CHANGE IN THE LAW; HERE THE FORECLOSURE ABUSE PREVENTION ACT, EFFECTIVE DECEMBER 30, 2022, WARRANTED VACATING THE MAY 15, 2019, ORDER, GRANTING THE MOTION TO RENEW AND DISMISSING THE COMPLAINT AS UNTIMELY (SECOND DEPT)

The Second Department, reversing Supreme Court, determined a motion to renew a prior summary judgment motion was the proper vehicle for asserting the Foreclosure Abuse Prevention Act (FAPA) which became effective December 30, 2022. The motion for summary judgment was denied May 15, 2019:

35 Pleasure moved for leave to renew its prior cross-motion for summary judgment dismissing the complaint insofar as asserted against it and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. In support of its motion, 35 Pleasure argued that the plaintiff’s commencement and voluntary discontinuance of the 2011 action rendered this action untimely under FAPA, which constituted a change in the law. The plaintiff opposed 35 Pleasure’s motion, contending, inter alia, that FAPA should not be given retroactive application, and cross-moved, among other things, to confirm the referee’s report and for a judgment of foreclosure and sale. *  *  *

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221[e][2]). “Therefore, a motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law … . * * *

The six-year statute of limitations for this action began to run in December 2011, when the plaintiff commenced the 2011 action and elected in the complaint to call due the entire amount secured by the mortgage … . In light of the statutory amendments enacted by FAPA, the voluntary discontinuance of the 2011 action did not de-accelerate the mortgage debt, and, thus, the applicable limitations period expired in December 2017. This action, which was commenced in May 2018, therefore, was untimely … . Moreover, the plaintiff’s contentions challenging FAPA’s retroactive application and constitutionality are without merit … . Bank of N.Y. Mellon v Conforti, 2026 NY Slip Op 05262, Second Dept 9-16-26

Practice Point: A motion to renew is the appropriate vehicle for addressing a change in the law, here the Foreclosure Abuse Prevention Act (FAPA). The cross-motion for summary judgment was denied in 2019. The FAPA became effective December 20, 2022. The motion to renew the cross-motion for summary judgment was denied by Supreme Court in 2024, reversed in 2026.