DLJ Mtge. Capital, Inc. v. Pittman

Opinion

DLJ Mtge. Capital, Inc. v Pittman

2026 NY Slip Op 04838

August 5, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

DLJ Mortgage Capital, Inc., appellant,

v

Bertha Pittman, etc., et al., defendants, Vista Holding, Inc., respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2024-07982, (Index No. 506702/13)

Angela G. Iannacci, J.P.

William G. Ford

Lourdes M. Ventura

Susan Quirk, JJ.

McCarter & English, LLP, New York, NY (Adam M. Swanson and Jessie D. Bonaros of counsel), for appellant.

Warner & Scheuerman, New York, NY (Jonathon D. Warner and Karl E. Sheuerman of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Derefim B. Neckles, J.), dated March 21, 2024. The order granted the motion of the defendant Vista Holding, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

In October 2001, the defendant Bertha Pittman executed a note in favor of D & M Financial Corp. (hereinafter D & M). The note was secured by a mortgage on certain real property located in Brooklyn. Pittman allegedly defaulted on the loan in December 2001. In May 2002, Olympus Servicing, L.P. (hereinafter Olympus), D & M's alleged assignee, commenced an action to foreclose the mortgage (hereinafter the 2002 action). Thereafter, in September 2002, the defendant Vista Holding, Inc. (hereinafter Vista), obtained title to the property. The 2002 action was voluntarily discontinued in April 2004.

In February 2003, Fairbanks Capital Corp. (hereinafter Fairbanks) commenced an action to foreclose the mortgage (hereinafter the 2003 action). A judgment of foreclosure and sale was issued on May 2, 2005. However, in an order dated January 4, 2010, the Supreme Court, inter alia, vacated the judgment of foreclosure and sale and directed dismissal of the complaint in the 2003 action for lack of standing.

In October 2013, the plaintiff commenced this action against Vista, among others, to foreclose the mortgage. Vista moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it for lack of standing and as barred by the statute of limitations, arguing, among other things, that Fairbanks had accelerated the mortgage debt in the 2003 action and failed to revoke its election to accelerate. In an order dated September 8, 2014, the Supreme Court, inter alia, denied dismissal of the complaint insofar as asserted against Vista, noting that Fairbanks' attempt to accelerate was a nullity on the ground that Fairbanks did not have standing to commence the 2003 action. Thereafter, Vista interposed an answer asserting various affirmative defenses, including the [*2]statute of limitations, and appealed from the order dated September 8, 2014. This Court affirmed the order insofar as appealed from (see DLJ Mtge. Capital, Inc. v Pittman, 150 AD3d 818).

In May 2023, Vista moved for summary judgment dismissing the complaint insofar as asserted against it as time-barred. On this motion, Vista argued that the complaint was time-barred because the prior acceleration of the mortgage by Olympus in the 2002 action was never revoked pursuant to the recently enacted Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022]). In an order dated March 21, 2024, the Supreme Court granted Vista's motion. The plaintiff appeals.

An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4]; Lubonty v U.S. Bank N.A., 34 NY3d 250, 261; U.S. Bank N.A. v Medianik, 223 AD3d 935, 937). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt" (BHMPW Funding, LLC v Lloyd-Lewis, 194 AD3d 780, 782 [internal quotation marks omitted]; see GMAT Legal Title Trust 2014-1 v Kator, 213 AD3d 915, 916). "Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the plaintiff elects in the complaint to call due the entire amount secured by the mortgage" (GMAT Legal Title Trust 2014-1 v Kator, 213 AD3d at 916; see U.S. Bank N.A. v Medianik, 223 AD3d at 937).

Here, Vista demonstrated, prima facie, that the six-year statute of limitations began to run in 2002, when Olympus commenced the 2002 action and elected in the complaint to call due the entire amount secured by the mortgage (see U.S. Bank N.A. v Medianik, 223 AD3d at 938; U.S. Bank N.A. v Doura, 204 AD3d 721, 723). Vista further demonstrated that this action was commenced in 2013, more than six years later (see U.S. Bank N.A. v Doura, 204 AD3d at 723).

In opposition, the plaintiff failed to raise a triable issue of fact. Under FAPA, the voluntary discontinuance of the 2002 action "did not serve to de-accelerate the mortgage nor did it 'revive or reset' the statute of limitations" (97 Lyman Ave., LLC v MTGLQ Invs., L.P., 233 AD3d 1038, 1041, quoting CPLR 3217[e]; see CPLR 203[h]; Citimortgage, Inc. v Gunn, 234 AD3d 922, 923; ARCPE 1, LLC v DeBrosse, 217 AD3d 999, 1001-1002). The plaintiff's arguments challenging FAPA's retroactive application and constitutionality are without merit (see Van Dyke v U.S. Bank, N.A., ___ NY3d ___, 2025 NY Slip Op 06537; Nationstar Mtge., LLC v Oliveri, 243 AD3d 579). Furthermore, the plaintiff failed to raise a triable issue of fact as to whether Pittman's alleged payments toward the mortgage subsequent to the 2002 action validly revoked the acceleration of the debt (see Abadin v HSBC Bank USA, N.A., 219 AD3d 426, 428; Bush N Stuy Corp. v Bayview Loan Servicing, LLC, 215 AD3d 916, 918).

Further, Vista's motion was not barred by the doctrine of the law of the case. "An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court" (New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 205 AD3d 727, 727-728). "The doctrine of the law of the case operates to foreclose re-examination of the issue absent a showing of new factual circumstances, additional relevant evidence, or a change in the law that would warrant reconsideration of the issue" (id. at 728 [citation omitted]). Here, while this Court considered and affirmed on a prior appeal the determination that the action was not barred by the statute of limitations based on the attempted acceleration of the mortgage in the 2003 action, Vista demonstrated a subsequent change in the law, namely, the passage of FAPA, that warranted reconsideration of the issue of whether the action was untimely based on the acceleration of the mortgage in the 2002 action (see U.S. Bank Trust, N.A. v Miele, 243 AD3d 718, 720).

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted Vista's motion for summary judgment dismissing the complaint insofar as asserted against it.

IANNACCI, J.P., FORD, VENTURA and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court