M&T Bank v. Zaroom

2026 NY Slip Op 30886(U)

• Court: New York Supreme Court, Kings County
• Decided: March 2, 2026
• Docket: Index No. 513011/2016
• Status: Unpublished
• Author: Menachem M. Mirocznik

Opinion

M&T Bank v Zaroom 2026 NY Slip Op 30886(U) March 2, 2026 Supreme Court, Kings County Docket Number: Index No. 513011/2016 Judge: Menachem M. Mirocznik Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/513011_WW.html[03/19/2026 3:45:52 PM] FILED: KINGS COUNTY CLERK 03/17/2026 10:08 AM INDEX NO. 513011/2016 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 03/17/2026

At lAS Part FRP5 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse located at 360 Ada~§ Street, Brooklyn , NY 1120L on thej_lJC.fofMarch 2026 PRESENT: HON. ME ACHEM M . MIROCZ 1 IK JUSTICE OF THE SUPREME COURT Index No. 513011/2016 M&T BANK,

Plaintiff,

-against-

AVNER ZAROOM , GILA ZAROOM , MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Decision, Order and Judgment ACTING SOL ELY AS NOMrNEE FOR (Motion Seq. 6 and 7) METROPOLITA ATIO AL BA K MORTGAGE COMPANY, LLC, HSBC BANK USA NATIONAL ASSOCIATION AND AMERICAN EXPRESS CENTURION BA K,

Defendants.

Papers Numbered Notice of Motion NYSCEF Doc. 160-165 Notice of Cross-Motion/Opposition Papers NYSCEF Doc. 166- 168 Opposition to Cross-Motion/Reply Papers NYSCEF Doc. 173-176 Repl y to Cross-Motion NYSCEF Doc. 177- 179

Upon the foregoing papers, the motion(s) is/are detennined m accordance with this Decision , Order and Judgment as foll ows:

FACTUAL AND PROCEDURAL HISTORY

This nearl y decade-old action was commenced on July 29, 2016, seeking to foreclose a consolidated mortgage (the ·'mortgage") executed by defendants Avner Zaroom and Gila Zaroom (the "defendants") encumbering the property known as 2612 Avenue J, Brooklyn, New York 11210 (the "property").

On January 14. 20 l 0. plaintiff s predecessor commenced a foreclosure action seeking to forecl ose the mortgage entitled Citimortgage Inc v. Zaroom, Et al; under Index Number 1104/20 l 0 (the '"20 IO Forec los ure·'). T he comp laint in the 2010 Forec losure accelerated the mortgage and demanded payme nt in ful l. On October 18. 20 13, 2010 Forec losure was dismi sed for neg lect to prosecute. On October 19, 2015. CitiM01t gage Inc. attempted to revoke the acceleration of the mortgage by sending notice of de-acce leration to defenda nts.

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On August 30, 2016, defendants joined issue with the filing of an answer that asserted various affirmative defenses including that the subject mortgage is barred by the statute of limitati ons and a counterclaim to discharge the mortgage pursuant to RPAPL 1501 [4] .

On October 7, 2016, plaintiff filed reply to defendants' counterclaim .

On April 30, 2018. the Court granted plaintiff's motion for summary _judgment and order of reference. The Court fou nd that thi s act ion was timely in light of plaintiff's revocation of the acceleration by notice of de-acceleration.

On September 4, 2019, the Court granted plaintiff's motion to confirm the refere e· s report and iss ued a judgment of foreclosure and sale.

On May 7. 2024. the Court denied defendants· motio n to renew the April 30. 2018 order granting summary judgment. to vacate the judgment of foreclosure and dismiss this action as barred by the statute of limitations in light of passage of Foreclosure Abuse Prevention Act into law. effective December 30, 2022 (L 2022, ch 821 [·'FAPA''] , § 10). The motion was denied solely on the basis that the motion was untimely having been brought after the time to appeal from the judgment of foreclosure and sale had expired. Defendants timely appealed and that appeal is fully perfected and is awaiting oral argument.

Plaintiff novv· moves for an extension of time to conduct the foreclosure sale and for the substitution of a new publication for the notice of sale. Defendants cross-move for leave to renew their prior application and for leave to reargue same. 1

DISCUSSION

I. Introduction

Before the Court is plaintiffs motion to extend the time to conduct the foreclosure sale and defendants' cross-motion for leave to renew and reargue seeking application of FAPA to vacate the prior judgment of foreclosure and sale and dismiss this action as time-barred.

Plaintiff contends that defendants ' motion to renew is untimely because it was made after expiration of the time to appeal from the judgment of foreclosure and sale. That contenti on cannot be reconciled with the controlling interpretation of FAPA § 10 by the Co urt of Appeals and the unanim ous appellate authority that has since applied it.

The Court of Appeals has now made clear that FAPA app lies retroactively and broadly to all foreclosu re actions in which ·'a fin al foreclosure sale had not been enforced prior to its effective date, including actions pending at the time of its effective date." Article I 3 LLC v Ponce De Leon Fed Bank, _NY3d_, 2025 NY Slip Op 06536 [2025][''Article 13"]; See also Van Dvke v US Bank, l\/.4., _ NY3d _, 2025 NY Slip Op 06537 [Nov. 25, 2025]['·Van Dyke .. ]. In adopting that interpretation, the Court explained that the Legislature deliberately chose the enforcement of the foreclosure judgment - i.e., the judicial sa le of the property - as the operative cutoff for the stat ute· s retroactive reach. id Thus. under FAPA § 10, the di spositive inqui ry is not whether the time to

1The instant motion was referred to this Court after the Hon. Lawrence Knipe! retired . For purposes ofCPLR 222 1[a]

the underlying issue of forum shopping is thus not present herein.

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appeal from the judgment has expired, but whether the judgment has been enforced through a forec los ure sale.

Thus, on this question, the th ree branches of governmen t have spoken with one voice. The Leg is larure enacted FA PA w ith an express retroactiv iry clause keyed to whether a foreclosure judgment has been enforced. The Executive ap proved that enactment. An d the Court of Ap peal s has co nfirm ed that the statute applies broadly lo all foreclosure actions in which the judgment has not yet been enforced through a judicial sale. As will be detailed below. the Ap pell ate Division - across three departments -has un iform ly applied that directive.

Beca use the foreclosure judgm ent in this case remains unenforced, defendants' motion to rene w is timely as a matter of law . An d because FAPA applies retroactively to th is action, the statute of lim itati ons bars the foreclosure claim. Plaintiff s moti on to extend the time ro conduct a foreclosure ale in an action th at must now be dismissed is therefore denied.

II. FAPA Applies to All Actions Where a Judgment of Foreclosure and Sale Has Not Been "Enforced". A Judgment of Foreclosure and Sale Is Not Deemed "Enforced" Until After the Judicial Sale Is Held.

FA PA § I 0. which provides:

·This act shall take effect immediately and shall apply to all actions commenced on an instrument described under [C PLR 21 3(4)] in which a final judgment of fo recl osure and sa le has not been enforced."[ emphasis added]

The Appellate Division has consistently held that enforcement ofajudgment of foreclosure and sale occurs only upon the judicial sale of the property. See US Bank NA. v Livoti, 243 AD3d 72 I [2d Dept 2025] [F APA applies where an auction has been scheduled but not conducted because the judgment has not been enforced]; Wells Fargo v Ferrato, 238 AD3d 436, 437 [ I st Dept 2025] ["Enforcement" of a foreclosure judgment is understood as the conducting of a sale]. In the established lexicon of foreclosure law, enforcement of such a judgment means the judicial sale of the property pursuant to the judgment. See Banque Ara be Et Internationale D 'lnvestissement v One Times Sq. Ltd. Partnership, 223 AD2d 384, 385 [l st Dept 1996) ["Upon such uudiciall sale, the foreclosure proceeding was terminated"].

In FV-I. Inc. v Samuels, 240 AD3d 757, 760 [2d Dept 2025]["Samuels"], the Second Department rejected the notion serving a notice of sale is tantamount to enforcement of the judgment of foreclos ure. Specifically, the Court held that "[e]nforcement of a judgment of forec losure and sale is generally deemed complete when the sale is concluded .. . Since the auction sale had not yet been held in this action as of the effective date of FAPA, the plaintiff had not yet enforced the judgment of foreclosure and sale at that time and, therefore, FAPA applies .. , Indeed. FAPA §10 uti lizes the te rm "enforced·· in the past tense, i.e. the conclusion of enforcement not actions taken in antic ipati on thereof. Service of a notice of sa le is not enforcement of the j udgment, let alone a conclusion of enforc ment. It is merely notice of a "poss ib le future·' enfo rcement event. See 21st Mortg. Corp. v Adames, 153 AD3d 474 [2d Dept 2017]["nothing more than .. . a possible future event. "] cf. Deursche Bank Nal . Tr. Co. v Royal Blue Realty Holdings. inc., 148 AD3d 529

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530 [1st Dept 201 7], ahrogated by Freedom Mtge. Corp. v Engel, 3 7 NY3d I [2021] abrogated by FAPA §7.

The record establishes that the judgment of foreclosure and sale has not been enforced: no sale has occurred, no deed has transferred, and no proceeds have been distributed. The mere Notice of a foreclosure auction that never occurred does not constitute ·'enforcement'" of the judgment. Because the foreclosure judgment here has not been enforced through a judicial sale. defendants· motion invoking FA PA is timely as a matter of law.

HL CPLR 222l(e) Imposes o Statutorv Time Limit, and FAPA §10 Creates a Legislative Exception to Any Judicially Crafted Timeliness Rule. There is Unanimity Amongst the Appellate Division Departments.

The plain language of CPLR 2221 [e] imposes no statutory time limit on a motion to renew. See C PLR 2221 [e]; Deutsche Bank Natl. Tr. Co. v Go!dwasser, 237 AD3d 1291 [3d Dept 2025]["Goldlvasser'']. Historically, courts developed a prudential rule that such motions generally should be made before final judgment or before the time to appeal therefrom expires. based on the policy consideration that "there must be an end to lawsuits:· Matrer

Huie. however. made clear that this limitation is judicially created. not statutory. let al one a constitutional one. The Co wt of Appeals explained that the timing rule governing motions to renew exists only as a prudential measure designed "to balance the availability of relief follo.ving a change in law with the interest in finality'', while recognizing that the Legislature remains.free to alter that balance by statute. Huie. 20 NY2d at 571-572.

The Legislature did precisely that in F APA § I 0. which expressly provides it is applicable all actions where "a final judgment of foreclosure and sale has not been enforced." By its plain t rms. the statute applies to any fo rec losure action in which the judgment has not been enforced, without regard to when the judgment was entered or whether the time lo appeal has expired. othing in the statute carves out cases in wh ich renewal wou ld otherwise be considered untimely.

The Appellate Division has now applied this statutory directive with unanimity.

The Third Depa rtm ent held in Goldwasser. that FAPA §IO creates a legislative exception to the judicial timing rule described in Huie. Rejecting the argument that renewal was untimely because the motion was made after the time to appeal had expired, the court concluded:

·' In our view, the Legi . lature's assertion that FAPA applies to ·all actions ... in which a final judgment of foreclosure and sale has not been enforced' ... created such an exception. As such, ,,ve find that the motion to renew was timely.'·

Goldwasser, 237 AD3d at 1293.

The First Department held in US Bank NA v Gallant, 237 AD3d 522 [I st Dept 2025]["Gallant"] that renewal based on FAPA is untimely after the time to appeal from the Judgment expired. In 21st Mtge. Corp. v Lin, 242 AD3d 40 I [ I st Dept 2025], recalled and l'Cu.:ated,

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2026 NY Slip Op 01116 [1st Dept Feb. 26, 2026]["Lin"], applied its holding in Gallant to find that an appeal based upon F APA is untimely.

However, following the Court of Appeals· clarificatio n of FAPA "s retroa ctive scope in Article I 3 - the Fi rst Depaitment granted renewal in Lin and confirmed that renewa l is timel y even after the ti me to ap peal expired where a judgment of fo recl osure and sa le has not been en forced. The court exp la ined that th e onl y way to effectuate FA PA ·s ret roactive app lication after ent1y of a foreclo sure judgme nt is through a motion to renew brought before the foreclosure sale is conducted and th erefore held that such a moti on is time ly even w here the time to appeal from the judgment has expired.

Taken together. Goldwasser. Samuels. and Lin establi sh a uniform rule across the Appellate Di vision· s First, Second. and Third Departments: where a judgment of forec losure and sale ha · not been enforced through a judicial sale, a moti on invoking FAPA may no t be deni ed as un ti mely based on the expiration of the appea l period.

This case fits squarely within that framework.

Plaintiff insists that permitting renewal after the appeal period underm ines finality. Th e identi cal argument was rej ected in Go ldwasser, where the court exp lained that the Legislature not the judiciary, determin es when retroactive corrective legislation may disturb prior proceedings. Indeed, "the constituti o nal principle of separation of powers, impl ied by the separate grants of po wer to eac h of the coordinate branches of government, requires that the Legislature make the critical policy decis ions''. Bourquin v Cuomo. 85 NY2d 781. 784 [ 1995] [emphasis added]. FA PA remain s consistent with the rule set by Court of Appeals precedent, inso far as the Legislature merely specified a later date - when the judgment has been '·entorced·' - for the ·'end to la\vsuits'' for foreclos ure . Huie, 20 Y2d at 572.

This understandin g reflects the longstanding principle that a j udg ment of foreclosure and sale occupies a unique procedural posture. Unlike most judgments . it remains at least partially interlocutory unti l execu tio n throug h the foreclosure sa le. See Null v Cuming, 155 NY 309 [1898].

The legi lative hi story of F APA reflects the ame understand ing . As a former Co urt of Appea ls Justice, the Hon. Robert S. Smith (Ret.), a former As oc iate Judge of the Co urt of Appeals observed in an o pinion letter included in the FAPA Bill Jacket, "there is a sense in which the judgment is not 'fi na l' ; until the sale is comp lete, the litigation remain s pending. and the borrower retains the right to pre nt the sale and redeem the property by paying the mortgage de bt.'· FA PA Bill Jacket at 95 .

The Co urt in Goldwasser o bse.rved th at the Legi slature enacted FA PA ·'to cl ar ify the jud icial proces .. . while also protecting hom eowners from ha ving to defend multiple foreclo. ure action s for lengths of ti me that far exceed the applicable statutes of limita tions:' Goldwasser. 237 AD3d at 1294 .

Once the Legi slature directed that FAPA applies to all unenforced fo rec losure judgments, and once the Appellate Divisi on confirn1ed that this statutory direct ive creates an express legis lative exception perm itti ng renewal beyo nd th e appeal period, this Co u1t lacks discretion to deny renewal as untimely .

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The Second Departmenf s decision in Samuels also compels the conclusion that a motion fo r re lief under FAPA is timely even whe n the time to appeal from the judgment has expired. provided the j udgmen t has not yet been enforced.

In Sam uels. the record below reveals that a j udgment of fore closu re and sa le had been e ntered months earlier in October 2022, no appeal had been take n. and the defendant moved in June 2023 - well after the appeal period had run -to invoke F APA. See NYSCEF Docket, FV-1 inc. v. Samuels, Sup. Ct.. assau Cty. Index No . 002371 /2017. The plaintiff expressly argued that the judgment was final and insula ted fro m retroactive relief. See FV- 1 lnc. v. Samuels, 2d Dept Docket No . 2023 -11 698, NYSCEF Doc. 26, *8-1 0. The Second Department rejected that content ion. ho ld ing that because '·the auction sa le had not yet been held ... the plaintiff had not yet enforced the judgment of foreclosure and sale ...and, therefore. FAPA applies.·· Samuels, supra. Relying on the F APA Bi II Jacket and its own recent precedent. the court cone luded that the Supreme Court '·shou Id have granted'. the motion to vacate the judgment and dismiss the action as time-barred. Id. at 761.2

Importan tly. the movant in Samuels did not style his mot ion as a CPLR 2221 motion to renew, per se. Regardless of the appe llation of the motion , given F APA § 1o· s clear command that F APA applies to all actions where a judgment has not been enforced. the only applicable temporal limitation for a motion which invokes FAPA is: '·has the judgment of forec losure and sale been enfo rced"? After al L '·[i ]t does not matter how a motion is titled by an attorney. What matters is w hat the moti on actually is in substance''. Citibank, NA. v Ke rszko. 203 AD3d 42, 55 [2d De pt 2022]; See also Coke-Holmes v Holsey Holdings, LLC, 189 A D3d 1162 [2d Dept 2020]["The courts are not bound by the label appended to the motion by a party, and can des ignate a motio n for renewal as one fo r reargument if it presents neither new facts no r a change in the law ."]; Sutton v Syla , 223 AD3d 764 [2d Dept 2024][" The courts are not bound by the labe l appended to the motion by a party, and can designate a motion for renewal as one for reargument if it presents neith er new fact s nor a change in th e law"] ; L. Raphael N YC C l Corp. v Solow Bldg. Co., L.L.C., 206 A D3d 590, 592 [1st Dept 2022] [" [T]he nature of an acti on or remedy does not necessaril y depend upon the no menclature used by a party, but instead, upon th e character of the allegations to determine its true nature . . . Accordingly, and because [the party] also moved for "other and further relief," we may deem its motion to have been made under a more appropriate procedural mechanism that affords it essentially the same relief that it seeks .. . provided that such a mechanism exists." ] [interna l citations and quotation marks omitted]

Here, the defendants styled their prior motion as both under FAPA § l O and as a motion to renew under CPLR 2221. Th is Court concludes that under either appellation, the motion is timely, s ince the judgment of fo reclos ure and sale has not been en forced. 3

2 'otably. the defendant in Samuels did not raise the statute of limitations in opposition to the morion for summary

judgment or the motion for ajudgment of foreclosure and sale, and the Second Department still granted the motion to vacate the judgment of forec losure and sale and dismissed the action a'i time-barred. Thus, Sun111els (consistent with Tucker) instructs that even a so-called .. waiver" of the statute of limitations defense. by "fa il ing'' to interpose it in opposition to the mot ion for summary judgment or motion for a j udgment of foreclosure, is no barrier to the appl ication of the Legislature's unequi vocal command that F APA appl y to all actions where a j udgment of fo recl osure and sa le has not been enfo rced. 3 Other trial couns havt: appiied F APA retroactively. po ·t-judgment, where no sale has been held pursuant to the

judgment. See New Residential Mtge., LLC v Tobing, Index , ·o. I35 I45i2018, NYSCEF Doc. l 61 [Sup. Ct. Richmond County June 5, 2023] Lapply ing FAPA retroactively, even post-judgment, where no sa le pursuant to j udgme nt of

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JV. T he Legislature Chose ot to Impose an Appeal-Deadline L im itation, and This Co urt May Not Rewrite F A PA to Add One

It is wel l estab lis hed that ·'[i] t is fundam ental that a court in interpreting a statute, should attempt to effectuate the intent of the Legislature" S. H. v Dioci>se ofBrookfvn, 205 AD3d 180, 185 [2d Dept 2022]; People v Roberts, 31 NY3d 406, 418 [2018][ " [O]ur task-as it is in every case involving statutory interpretation- is to ascertain the legislative intent and construe the pertinent statutes to effectuate that intent"]; Riley v County (?f Broome, 95 NY2d 455 [2000]["The primary consideration of courts in interpretin g a statute is to "ascertain and give effect to the intention of the Legislature" .]

A. Th e Statutory Text Is Clear and Precludes Judicially Created Limitations.

''All parts of the constituti onal provision or statute must be harmoni zed with each other as wel l as with the general in tent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof. Indeed, our well-settled doctrine requires us to give effect to each component of the provision or statute to avoid a construction that treats a word or phrase as superfluous." Matter of Hoffmann v N Y Stale Ind. Redistricting Commn. , 41 NY3d 341, 359 [2023][internal citations and quotation marks omitted]; See also People v Roberts, 31 N Y3d 406, 428 [20 l 8]["meaning and effect should be given to every word of a statute and that an interpretation that renders words or clauses superfluous should be rej ected." ]; M atter ofJun Wang v James, 40 NY3d 497 [2023 ]["[A]ll parts of a statute are intended to be given effect and a statutory construction wh ich renders one part meaningless shou ld be avoi ded"].

A stat ute cannot be interpreted in a man ne r that renders words s uperfluous or defeats its own operation . See Hoffmann v 1\/ew York Srate Ind. Redisn-icting Co111mn. , 4 1 Y3d 341. 359 [2023]: People v. Galindo. 38 Y3d 199,205 [2022]. Courts are not free to rewrite statutes. The Co urt of Appeals has repeatedl y cautioned that '·cou1is are not to legislate under the guise of inte rpretatio n." People v Finnegan, 85 NY2d 53, 58 [1995].

Where , as here, "the statute unequivoca lly describes in general terms the particular sit uation in which it is to apply and nothi ng indicates a contrary leg islative in te nt the courts shou ld not impose limitations on th e clea r statutory lan guage.'' Matter of Tucker v Bd.

FAPA §JO, expressly provides that it app lies ·'to all actions ... in vvhic h a final judgment of forec losure and sale has not bee n enfiirced.''[em phasis added]

" [I]n Article 13 LLC v Ponce De Leon Fed Bank, the Court of Appeals clarified the application of the Foreclosure Abuse Prevention Act (FAPA), finding that it applies retroactively and to all foreclosure actions in which "a final foreclosure sale had not been enforced prior to its effective date, including actions pending at the time of its effective date" Lin. supra.

forec losu re and sale had been held].

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As the First Department ex plained, once Arricle 13 c larified that FA PA applies to all foreclosure actions where the judgment has not been enforced, the only procedural mechani sm capable of giv ing effect to that retroactive mandate after entry of a judgment - and after expiration of the appeal period - is a motion to renew brought before the fo reclo sure sale is condu cted . See id.

If the Leg islature had intended to limit FAPA motions to those filed before expiration of the appea l period , o r in any other manner (as addressed below) it could eas ily have done so - as it did in CPLR 2221 [d][3] govern ing motions to reargue. It did not.

The Third Department recognized precisely th is point in Goldwasser, ho ldin g that FAPA ·s re troactivity clause "created such an exception" to the judicial timing rule governin g renewal moti ons. id. at 1293. The statute-as enacted and as signed-th erefore controls.

Plaintiffs argument - that this Court should impose a judicial timeliness bar because the time to appeal has exp ired - wo uld require the Court to engraft a limitation onto FAPA that the Legislature deliberatel y did not include. Nothi ng in the statutory text suggests an exception where the appeal period has lapsed . New York law does not permit statutes to be construed in a manner that renders their central operative provision meaningless.

B. The Legislative History Confirms the Legislative Intent.

It is equally well established that legislative history is an important tool to accomplish that goal. See e.g. Riley v County of Broome, 95 NY2d 455 [2000]["the legislative history of an enactment may also be relevant and is not to be ignored, even if words be clear. .. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination." ][intemal quotation marks omitted]; See Article 13, supra. [Court of Appeals relying heavily on FAPA legislative history to ascertain legislative intent]

More recent decisions confirm the continued relevance of legislative materials. ln People v Roberts, 31 NY3d 406 [2018], the Court of Appeals relied repeatedly upon the sponsor' s memorandum to interpret the Legislature's intent in enacting New York 's identity theft statute. See id. at Similarly, in Harkenrider v Hochul, 38 NY3d 494 [2022] , the Court conducted an extensive examination of legislative materials- including sponsor memoranda, floor debates, and appro va l memoranda-to determine the meaning of constitutional amendments.

The Appellate Division has likewise recognized the importance of legislative history in statutory interpretation. In SH v Diocese of Brooklyn , 205 AD3d 180 [2d Dept 2022], the court began its analysis by examining the legislative history of the statute, including the Senate Introducer' s Memorandum and legislative floor statements. See Id. at 185-187. There, the Appellate Division conducted systematic analysis of legislative history, stating that "we commence our analysis with a review of the legislative history of the bill" even when "both parties argue that the statute unambiguously supports their view" Id. at 185. The court examined the Senate Introducer's Memorandum in support, multiple legislative floor statements, and voting explanations to conclude that "the legislative history supports a finding that the legislature intended'' a broad application of the statute. Id. at 187.

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Here, the legislative history reinforces this conclu ion. ln discerning the scope of FAPA, the Court of Appeals has looked to legislative materials accompanying the statute. See Van Dyke. supra: Article 13. supra; see also Matter of Duell v Condon, 84 Y2d 773 , 783- 784 [1995]. ln signing FAPA into law. the Governor considered the opinion letter of the Hon. Robert S. Smith (Ret.). a former Associate Ju dge of the Court of Appeals. who observed that there is ·'no per se prohibition against retroactive application of legislation to a judgment.'· FAPA Bill Jacket at 94. Even opponents of the legislation acknowledged that § 10 would operate retroactively in any residential foreclosure action where a public auction had not yet occurred. See FAPA Bill Jacket at 255-56 [Memorandum of the New York M01tgage Bankers Association addressed to Governor Hochul] ["[F APA] would have a retroactive effect on any residential mortgage foreclosure action in which a pub Iic aucti on of the foreclosed property has not been completed"] [emphasi in original]. As the Court of Appeals has observed. where even opponents of legislation recognize its retroactive reach, such commentary confirms the Legislature· s intent. See }darter of Duell v Condon, 84 Y2d at 784.

Contrary to plaintiffs contention, the policy judgment whether renewal may be sought aner expiration of the appeal period is reserved to the Legislature, not the judiciary.

Any interpretation that would bar such a motion as untimel y would simply be contrary to the clear intent of the legislature. As the Court of Appeals has observed , "Most importantly. the reach of th e statute ultimately becomes a matter of judgment made upon review of the legislative goal.'' in re Afarino S., I 00 NY2d 361, 371 [2003] : see Article 13. supra.

C. FAPA Is Remedial Legislation and Must Be Liberally Construed to Correct Prior Judicial Misinterpretations and Prevent Procedural Abuse

Independent of the statutory text, the Court of Appeals holding in Article 13 and the Appellate Divi sion ·s decisions in Goldwasser, Samuels, and Lin. the conclusion that F APA applies here - even where th time to appeal has expired - follows from a deeper structural principle: FAPA is remedial legislation. As such, it must be applied liberally to accomplis h its remedial purpose.

FAPA is a quintessentially remedial statute designed to correct judicial misinterpretations and restore the intended operation of the statute of limitations. Each Department of the Appellate Division has recognized that FAPA is "remedial" legislation. See, e.g. , FV-1, Inc. v Palaguachi, 234 AD3d 818, 822 [2d Dept 2025]; U.S. Bank NA. v Lynch, 233 AD3d l 13, 116-17 [3d Dept 2024]; Genovese v Nationstar Mtge . LLC, 223 AD3d 37, 45 [ I st Dept 2023]; Deutsche Bank Natl. Tr. Co. as Tr. for Ameriquest lvftge. Sec. Inc .. Asset-Backed Pass-ThrouKh Cert(ficates, Series 2005-R5 v Testa, 243 AD3d 1255 [4th Dept 2025]. The Legislature's judgment that such remedial protection should reach any foreclosure judgment not yet enforced is binding. The courts may not graft additional timeliness limits onto the statute.

New York courts have long held that remedial statutes - particular ly those enacted to correct judicial misinterpretations and curb procedural abuses - ··should be liberally construed to spread [their] beneficial effects as widely as possible."' Post v I ]0 E. End A,•e. Corp. , 62 NY2d 19, 24 [1984]. F APA falls squa rely within this category. Its text, legislative findin gs, and history reflect a clear determination to restore the intended operation of statutes of limitation s governing foreclosure actions and lo curb the procedural gamesmanship identified in Engel and its progeny.

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See Van Dyke. supra.

The Court of Appeals has now confinned the breadth of FAPA ·s remedial purpose. In Van Dyke. the Court explained: ·'In light of the Legislature ·s determination that these ·abuses· should be cu1tailed, it is rational for FAPA to apply retroactively to shield as man_ borrowers as possible from those practices:' Van Dyke. 2025 ·y Slip Op 06537, at 7 [emphasi added].

That guidance resolves the issue presented here. A judicial ru le limiting F APA to borrowers who moved before expiration of the appeal period would squarely contradict the Court of Appeals' directive that the statute protect · as many borrower as poss ible.'" Such a narrow construction would arbitraril y exclude homeowners whose cases have progressed to the judgment stage but whose properties have not yet been so ld-precisely the class of borrowers the Legislature sought to protect. lndeed , such a reading would not merely fail to advance FAPA·s remedial purpose; it would undermine it. If the statute applies to actions ·•in which a final j udgment of foreclosure and sale has not been enforced." then limiting relief to borrowers who happen to file motions before their appeal periods expire would create a judicially in vented exception that appears nowher in the statute or it legislative history and is incompatible with the Court of Appeals· instruction in Van Dyke that FAPA's protections extend as broadly as possible.

This interpretation also accords with the statute·s overall purpose. Given FAPA" . plain language and the Legislature's explicit intent to abrogate the rule adopted in Engel. the borrowers' position - that FAPA applies where. as here. the home has not been sold at a foreclosure auction- '"better comports with the tatute·s overall purpose and the policy behind its enactment." :lvfatter (~/ Scanlan v Bi!ffalo Pub. School Sys .. 90 N Y2d 662,676 [ 1997].

Accordingly. both the remedial nature ofFAPA and the Cou1tof ppeals' gu idance in Van Dyke compel the conclusion that the statute applies here. The expiration of the appeal period is irrelevant under r APA 's framework .

V. Other Court of Appeals Decisions Applied New Legislation to nenforced Post- Appealable Judgments.

The Court of Appeals has long held and applied ne,-v legislation to unenforced though post- appealable judgments. Indeed. such retroactive relief is not unu ual where a judgment affecting real property has not yet been executed. Below are several.

In Whitmarsh v Farnell. 298 Y 336 [ I 949][··Whitmarsh .. ], the Court of Appeals held that newly enacted housin g legislation applied even afte r entry of a final judgment becau e the judgment had not yet been executed. Similarly, in Tegreh Realty Corp. v Joyce, 88 AD2d 820 rI st Dept I 982][·'Tegreh .. ]. newly enacted rent-control legislatio n applied where a judgment of possession had been entered but not yet ex cuted citing Whilmarsh where the "Court of Appeals stated that the then recent rent control law was applicable to all pending and future eviction proceedings even though the final orders of eviction had been entered prior to passage of the new law.'·: see also: Gordon & Gordon v Mada1•in, 108 Misc 2d 349, 351-352 [App Term 1st Dept 1981 ]; Article I 3, supra. ["Thus, for all foreclosure actions as to which a final foreclosure sale had not been enforced prior to its effective date, including actions pending at the time of its effective date, FAPA unequivocally applies.'']

IO

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Other decisions of the Court of Appeals rein force this principle. In A,JatJer c?f l-vfeegan S. ,, Donald T. 64 NY2d 751 [ 1984][",tfeega n"]. the Co utt he ld that a prior judgment d ismissing an action on statute-of-lim itations grounds did not precl ude a subsequent action based on an interveni ng legislative clarification of the statute of Iimitations. Id. at 752. Likewise, in Maller of World Trade Ctr. Lower Manhattan Disaster Site Litig. , 30 NY3d 377. 394-400 [20 l 7]['"World Trade.']. the Court recognized that legislative enactments may affect even non-appealable judgments. These authoriti es co nfirm that retroactive legislation may a lter the legal consequences of prior judgments where the Legislature has so directed.

These authorities confirm a settled principle: where a judgment affecting real property remains unexecuted, the Legislature may retroactively provide a procedural mechanism to prevent its enfo rcement. FAPA §10 o perates in precise ly this man ner. Like CPLR 5015, CPLR 2221 and the legis lation at issue in fVhitmarsh, Tegreh, Meegan and fVor/d Trade, F APA §IO provides a legislatively prescribed mechani sm for relief from a judgment, even where the time to appeal has expired. Indeed, the Legis lature's au thority to enact such laws is plena ry, ''limited only by the Federa l and State Constitutions."' Stefanik v Hochul, 43 Y3d 49. 58 [2024).

This is fully consistent with the Court of Appeals' reasoning in Matter of Hodes v. Axelrod, 70 N Y2d 364 [ I 987]["Hodes" ]. As Hodes recognized, the so-ca lled "vested ri ghts doctrine" is ·'conclusory, and indeed a fiction" that often obscures the broader considerations of fairne ss, re liance, and the public interest that govern retroactivity ana lysi s. Id. at 370. The Court rej ected any rigid rule prohibiting retroactive application of legislation merel y beca use a judgment has been entered, emphasizing that the relevant inquiry is whether the statute bears a rati ona l relat ionship to a leg it imate governm ental purpose. Id. at 372. See Campbell v. Holt, I 15 U.S. 620, 62 8-629 [ I 885][" 1t is to be observed that the word vested ri ght is nowhere used in the Constitution, neither in the ori g inal in strum ent nor in any of the amendments to it." ). Applying FAPA §IO to unenforced foreclosure judgments therefore fits squarely w ithin the type of rational, public-regarding legislative correction that Hodes upheld.

Accordingly, this Court cannot manufacture a limitation the Legislature intentionally om itted. Where a statute speci fi es the circu mstances under which it applies. "an irrefutab le infe rence m ust be drawn that what is omitted or not included was intended to be omitted o r excluded." Matter of Raynor v Landmark Chrysler, I 8 NY3d 48, 56 [2011]. To impose an appeal- deadline limitation o n FAPA would therefore constitute impermissible judicial legislation .

VI. The Separat ion of Powers Does Not Permit This Court To Alter FAP A's Retroactivitv C lause.

The institutiona l consensus i unmistakable. A majority of legislators enacted FAPA with an express retroactivity c lause keyed to whether a foreclosure judgment has been enforced. The Govern o r approved that enactment. The Court of Appeals has interpreted the statute· s retroactive reach. And the Appellate D ivision-across multi ple departments - has applied that guidance in Lin, Goldwasser. and Samuels. In these circumstances, the role of this Court is no t to refine or supplement the statute, bu t s imply to apply it.

To amend FA PA by judicial fi at- to insert a timeliness bar or waiver lim itation that the Legis lature clearly did not enact- would transform the judiciary from an interpreter of law into an

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auxiliary legi slature. Such a ruling would be more dangerous and go beyond even Lochner-style judicial overreach. It would constitute a silent redrafting of legislation enacted by both coordinate branches. New York ' s constitutional structure does not tolerate such judicial intervention. As the Court of Appeals has admonished "courts are not to legislate under the guise of interpretation " . People v. Finnegan, 85 Y2d 53 , 58 [1995]. Courts may not alter the operati o n of statutes based on our view of what might be preferable policy.

FAPA says what it says. The Court must-and therefore will-apply it as written.

To graft onto FAPA an unwr itten appeal - deadline limitation would substitute judicial preference for the policy choice made by the Legislature and approved by the Executive. That res ult would contravene the const itutional separation of powers. w hich reserves po licymaking to the Legislature. See Jones" Beame. 45 NY2d 402 . 406 [ 1978). As the Cou1t of Appeals long ago explained, when the Legislature has clearly expressed a new public policy through statutory enactment, earlier judicial decision s reflecting a different policy must yield . FA. Straus & Co. v Can. Pac. R. Co ., 254 NY 407, 4 13-14 [l 930]. Courts therefore may not alter that legislative policy choice by adding restrictions the Legislature did not adopt. See Kimmel, 29 NY3d at 40 I; ;\,fatter of Orens v Novello, 99 NY2d 180, 190 [2002].

The ri sks of judicial overreach are well understood in constitutional history . Plai ntiffs invitation - that thi s Court "correct" FAPA by engrafting a judicial timeliness limitation onto its text - would require the Court to do more than interpret the statute; it would require the Court to alter it. New York courts have long rejected such an approach . As the Comt of Appeals has explained, the j ud icial function is to give effect to the words chosen by the Legislature. not to substitute the court's judgment for that of the Legis lature regarding the wisdom of its policy choices. Matter of Orens I' Novello, 99 NY2d 180, 185 [2002] . The Lochner era is often cited a a cautionary example of court s intruding upon legislative policymaking by inva lidating statutes based on disagreement with legislative policy judgments-an approach the Court of Appeals has observed ·'has long been rejected on the ground that it would stymie the legislature 's exercise of the police power to provide for th e comm on good.'' Brighlonian Aursing Hom e v Daines. 21 Y3d 570. 576 [2013].

The principle tha t emerged from that history is straightforward: courts interpret statutes; they do not rewrite them. As the Cou1t of Appeals has repeatedly emphasized, courts may not ·'engraft limitations onto the plain language of the statute" or enlarge statutory text under the guise of inte rpretation . Kimmel v Stare , 29 YJd 386. 401 [2017]; see also Marter of Orens ,, Novello, 99 NY2d at 190. Where the Legis lature has spoken clearly. the co urt 's role is to apply the statute as ,.-vritten.

VII. The Law of the Case, Res Judicata, Collateral Estoppel and Waiver are Inapplicable.

Contrary to Plaintiff s contention. the ·'law-of-the-case .. doctrine does not bar renewa l w here, as here, there has been an intervening clarification or change in the law. As the Second Department has held, '·The law of the case doctrine does nor prevent a proper morion for /eal'e to renew . ., Spodek v Ne iss, 200 AD3d 952, 953 [2d Dept 2021 ]; see Strujan v Glencord Bldg Corp. , 137 AD3d 1252, 1253 [2d Dept 2016)["The 'law of the case · operates to foreclose re-examination of the question absent a showing of subsequent evidence or change of lavv"]; see also US Bank NA.

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v Moss, 186 AD3d 1753, 1753-54 [2d Dept 2020)] [law-of-the-case did not warrant denial where a change in the law occ urred after the prior order]. The Second Department has repeatedl y held that F APA constitutes change/clarification in the law to support a moti on to renew. See US Bank NA. v Livoti, _AD3d_ . 2025 NY Slip Op 06212 [2d Dept Nov. 12, 2025]; Deutsche Bank Natl. Tr. Co. v Nelson, 242 AD3d 702 [2d Dept 2025]. ··A clarification of the decisional law is a sufficient change in the law to support renewal'' . McLaughlin v Snmvl(fi. lnc .. 2 l 4AD3d 720. 721 [2d Dept 2023]. Lin. Goldwasser and Samuels - matters of first impression at the Appellate Division - had not been decided when Defendants first moved to renew under FAPA here. Nor had the Court of Appeals decided Van Dyke and Article I 3 at that t ime. Hence. these clarificati ons of the law suppott Defendants' motion to renew.

Nor do the doctrines of res judicata and collateral estoppel preclude renewal here. Both doctrines require that a claim (resjudicata) or issue (collatera l estoppel) be finally determined in a prior action to bar litigation thereof in a subsequent act ion. See Parker v Blauvelt Volunteer Fire Co. , Inc. , 93 NY2d 343,347 [1999]; Ryan v New York Tel. Co .. 62 NY2d 494.500 [1984]. Neither collate ra l estoppel nor res judicata apply to prior finding s in the same action. See ~Visel/ v lndo- A1ed Commodities. Inc., 74 AD3d 1059, 1060 [2d Dept 20 IO].

Plaintiff also contends that defendants· failure to perfect his pre-FAPA appeal from the granting of summary judgment prior to FA PA· s enactment bars them from now seeking relief und er FAPA. This argument is yet another attempt at imposing a j udicial limitation aga inst legi s lative will.

As noted at length above, much like the legislature, the Court of Appeals has been extremely clear that: '·Jn light of the Legislature's determinati on that these ·abuses· sho uld be curtailed. it is rational for FAPA to apply retroactively to shield as many borrowers as possible from those practices." Van Dyke at 7 [emphasis added]. Defendants' pre-FAPA conduct or inaction does not disqualify them from invoking FA PA ·s retroactive protec tions. To adopt plaintiffs position would frustrate the statute· s remedial pw-pose, contradict controlling case law, and improperl y impose judicial limitation that the Legislature did not enact.

ln any case. the notion that a borrower waived applicati on of FAPA, before its enactment, either through default. failure to perfect an appeal or otherwise, is not merel y unpers uasi ve : it is fundamenta lly mi sguided. The Court in Samuels rejected such a notion (see footnote 2), and a party cannot waive a ri ght that did not exist. Much like preclusio n principal s that arc ·'gro unded on the premise that once a person has been afforded a full and fair opportunity to litigate a particular issue, that person may not be permitted to do so again .'· Gramatan Home Jnv'rs Corp. v Lopez, 46 NY2d 481 , 485 [ I 979]

"A waiver is the voluntary abandonment or relinquishment of a known right.. .Accordingly, the defendants could not have voluntarily abandoned or relinquished a right that did not exist at the time." CIT Group/Consumer Fin., Inc. v Kaiser, 206 AD3d 791 , 793 [2d Dept 2022]. Like preclusion principals, must yield to new or clarifying law. See Mauer ofA1eegan S. v DonafdT., 64 NY2d 751 , 752 [1984][ "The earlier decision may be a conclusive adjudication of the petitioner's rights, existing then ; it cannot be an adjudication of rights thereafter conferred by law ... "]

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At the time summary judgment was granted and at the time the appeal was required to be perfected, any argument that the action was time -barred based on a prior acceleration would have been deemed foreclosed-indeed, frivolous-under the then-prevailing interpretation of the law shaped by Engel and its progeny. It would be perverse to now fault defendants for declining to assert an argument that courts would have rejected as legally untenable at that time. Our jurisprudence does not require litigants to perfom1 futile acts or to advance claims that would have been summarily dismissed under binding precedent. Remedial statutes "are designed to correct impe,j'ections in prior la11·. by generally giving relief to the aggrieved party ... Nelson v HSBC Bank. USA, 87 AD3d 995,998 [2d Dept 2011] [emphasis added]. A statutory construction which leads to the absurd result of penalizing borrowers for not raising a frivolous argument i prohibited. See Matter of Marian T. 36 Y3d 44, 61 [2020].

Precluding defendants from invoking FAPA becau e they failed to mount a doomed pre- FAPA legal argument would inve1t this principle. Jnstead of--giving relie f to an aggrieved party."' it would entrench the very ''imperfections" in prior foreclosure law that the Legislature sought to correct. See Asman v. Ambach. 64 NY2d 989 [1985] ["Remedial legislation is designed to correct imperfections in the prior law. by giving relief to an aggrieved party''].

In enacting FAPA, the Legislature clearly indicated that no house should be lost to a practice - the unilateral manipulation of the statute of limitations - found to be an ·'abuse'', suc h as sending a "de- acceleration·· letter on the eve of the expiration of the statute of limitations.

To hold otherwise would impose a retrospective penalty on defendants for not having predicted the Legislature·s subsequent repudiation of Engel and the judiciary·s embrace of FAPA 's protections. Such proposed rule that would effectively reward the very procedural "abuses'' that the Legislature sought to eliminate and punish the very homeowners the statute is designed to protect. This Court cannot accept that outcome and any such interpretation must yield to the legislative goal. See In re .Marino S .. l 00 Y2d 361, 371 [2003J[·'Most impo1tantly, the reach of the statute ultimately becomes a matter of judgment made upon review of the legislative goal. .. ]

Indeed. it is easy to envision numerous theoretical limitations to FAPA ·s application: for instance. a borrower may have failed to oppose the pre-f APA motion summary judgment, or pre- FAPA judgment of foreclosure and sale, or may have failed pre-FAPA to raise a defense clarified under FAPA in opposition to those motions. But this (or any) Court's ability to invent limitations. when it comes to interpreting statutes, is not only bes ide the point, but also impermissibl y intrudes upon the legislative sphere . If one trial judge inserts a limitation into a statute that the Legislature did not enact, the next court may add a preservation requirement, and the next an equity requirement and the following a diligence showing, until the legislative will is nullified by accretion - with no limiting principle to arrest the slide - the judiciary ceases to interpret the law and instead mutates into a surrogate legislature. 4

4 See e.g. Deutsche Bank Natl. Trust Co. v Hulse, 246 NYS3d 899 [Sup Ct, Suffolk County 2025). This Court is not so empowered. otwithstanding this Court is bound by the Court of Appeals, this Court affinnatively believes, that FAPA was intended to "shield as many borrowers as possible" from the practices the Legislature identified as abuses. Article I 3, supra. Regardless, the Second Department in Samuels app lied F APA as written even where the Court rejected the plaintiff's proffered waiver argument and is thus controlling.

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For this fundamenta l reason, this Court must, and thus will. heed Tucker's admonition that "statute unequivocally describes in general terms the particular situation in which it is to app ly. and noth ing indicates a contrary legislative intent, the courts should not impose limitations on the clear statutory language''. Id at 278. Rather, the singular question a court must ask when interpreting F APA ~ 10 is '· has the judgment of foreclosure and sa le been 'enforced'' ·? If it has not, the result is clear, based upon the plain language utilized by the Legislature: FAPA applies to all such actions.

A Legislature that did not hesitate to override the Court of Appeals' prior holdings, displace res judicata, collateral estoppel and law of the case, and reach past the expiration of the appeal period cannot rationally be understood to have stopped arbitrarily at waiver or default. The Legislature need not anticipate and address every conceivable procedural objection for its directive to control. The legislature did not hide their intentions. A review of the legislative history reveals the legislature 's frustration and leaves no doubt as to how broadly it was intended to apply. I.e. as broadly as possible. See Article 13, supra.

Rather, the Legislature declared-unambiguously-that FAPA ·'applies to all actions ... in which a fi na I judgment of foreclosure and sale has not been enforced. ., FAPA § 10 [emphasis added]. Where the Legislature speaks in such sweeping. unconditional terms, courts may not rewTite the statute by judicial fiat to require a preservat ion showing the Legislature declined to reqmre.

VIII. Alternativelv, Defendants are Entitled to Reargument

Even assuming for the sake of argument only that Lin. Goldwasser and Samuels (and Van Dyke and Article 13) are not clarifications of law for purposes of a motion to renew. then Defendants are nevertheless entitled to reargument. and upon reargument, the prior moti on to renew should be granted5. In denying the prior motion to renew. brought in 2023 following the passage of FAPA. as untimely given the expiration of the time to appeal from the judgment, the Court misapprehended. Huie, supra. While Huie states that a motion to renew is generally untimely if made after the time to appea l from the judgment has expired, Huie also instructs that the Legislature is free to override this judge-made rule co ncerning the timing of renewal motions. See id. F APA §IO as written constitutes such an express legislative override . Hence. the defendants· prior motion to renew, made prior to the enforcement of the judgment herein, was timely, and should have been granted.

IX. Application of the Foregoing Principles

Application of these principles compels the conclusion that this action is time-barred. FAPA applies retroactively to acts taken and actions commenced before its enactment. See Van Dyke v US Bank, NA.,_ 1Y3d_. 2025 NY Slip Op 06537 [Nov. 25, 2025]: A.rt. 13 LLC v Ponce De Leon Fed. Bank, _NY3d_. 2025 NY Slip Op 06536 [Nov.25.2025). The commencement of the 2010 action with a complaint containing a demand for immediate payment in full accelerated the debt and triggered the six-year statute of limitations on an action to foreclose the mortgage. The limitations period theref<)re expired no later than January 14, 2016. See CPLR 213(4]. Therefore,

5 Defendants have timely appealed from denying their prior motion for renewal and hence a motion for reargument is

timely . See lt::.kowitz v King Ku/Jen Croce,}· Co. , Inc., 22 D3d 636. 638 [2d Dept 2005]: Co11110/ly v Toys-R- Us, 250 AD2d 721. 72 l (2d Dept I 998] .

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defendants met their prima facie burden in demonstrating this action is untimely. Under FAPA ·s clarifications to CPLR 203[h], the purported 20 15 "deacceleration notice'' did not reset the statute of limitations. See MTGLQ Inv 'rs. L.P. v Rodgers. 239 AD3d 968. 970 [2d Dept 2025]: Citimortgage, Inc. v Gunn, 234 AD3d 922. 924 [2d Dept 2025]. Accordingly. the instant action, commenced more than six years after the acceleration of the debt via the commencement of the 2010 action. is barred bv the statute of limitations. See id; CPLR 213[4]. The comp laint shall be dismissed, and the notice of pendency shall be cancelled. See CPLR 6514[a]; Bay view Loan Servicing. LLC v Starr-Klein, 193 AD3d 807 [2d Dept 2021].

Defendants also sought judgment on their counterc laim to discharge the mortgage as time - barred pursuant to RPAPL 1501[4]. "Pursuant to RPAPL 1501(4), a person having an estate or interest in real property subject to a mo1tgage may maintain an action to secure the cancellation and discharge of the encumbrance, and to adjudge the estate or interest free of it, if the applicable statute of limitations for commencing a foreclosure action has expired· '. Tomala v Caliber Home Loans, inc., 243 A D3d 612, 613 [2d Dept 2025]. Because an action to foreclose the mo,tgage is barred by the tatLite of limitations for the reasons discussed above, it fol lows that Defendants are entitled to judgment on their counterclaim to cancel and discharge the mo1tgage of record. See Tomala, supra.

X. Conclusion

The question before this Court is whether FAPA §IO applies to this action, where a judgment of foreclosure and sale has been entered, the time to appeal expired, but was never enforced through a judicial sale. For th e reasons set forth abov . every authoritative source of law answers that question in the affirmative. A _judgment of foreclosure and sale is not ''enforced·' within the meaning of FAPA§ l Ountil the judicial sale is held. CPLR 2221 [e] imposes no statutory time limit on motions to renev.1 , and FAPA § l O creates an express legislative exception to any judicially crafted time liness rule-a conclusion the Appellate Division has reached with unanimity . The statutory text forecloses any judicially created appeal-deadline limitation ; the legislative history confirm the Legislature's intent to reach all unenforced foreclosure judgments without exception; and FAPA·s status as remedial legislation requires liberal construction to accomplish its protecti ve purpose. The Court of Appeals has consistently applted new legislation to pending matters and unenforced judgments, even after the expiration of the appeal period. T he separation of powers prohibits this Court from engrafting a limitation onto FAPA that the Legis lature chose not to enact. And neither the law of the case. res judicata, collateral estoppel, nor wa iver bars this result. On an alternative and independent basis, this Court grants renewal in the interest of justice.

The unifying principle that runs through each of these holdings is straightforward: the Legislature· s wil I governs. Every argument plaintiff advances- that finality bars retroactive relief. that the appeal period forecloses renewal. that defendants' pre-F APA conduct amounts to waiver - presupposes that a court may override the Legislature's unambiguous directive by inventing limitations the statute does not contain. But ··the reach of the statute ultimately becomes a matter of judgment made upon review of the legislative goal" Matier of Marino S .. I 00 Y2d 361, 370 [2003]. The legislative goal of FAPA is to ·'shield as many borrowers as possible'· from the consequences of abusive foreclosure practices. Any interpretation that yields an outcome incompatible with that goal must fail. To hold otherwise- to permit one trial judge to insert a limitati on the Legislature did not enact, and another to add yet an other-would mean that the

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judiciary ceases to interpret the law and instead becomes a surrogate legislature, nullifying the legislative will by accretion. This Court declines that path and heeds the admonition that coutts "should not impose limitations on the clear statutory language."

Because the judgment of foreclosure and sale in this action has not been enforced , FAPA applies. Because FAPA applies. the purported de-acceleration notice did not reset the statute of limitations, and this action----commenced more than six years after the acceleration of the debt- is time-barred. The complaint must be dismissed and the mortgage discharged.

Lastly, the granting of Defendants' cross-motion compels the denial of plaintiffs motion to extend the time to conduct the foreclosure sale as moot and the notices of pendency filed herein must also be cancelled. See CPLR 6514; See also generally, Nations tar Mtge., LLC v Davis, 240 AD3d 790 [2d Dept 2025]; Bayview Loan Servicing, LLC v Starr-Klein, 193 AD3d 807 [2d Dept 2021]

Accordingly. it is hereby

ORDERED, that Defendants' cross-motion (Mot. Seq. 7) is granted in its entirety, and the action be and hereby is dismissed as barred by the statute ofl imitations: and it is further

ORDERED, that the Notice of Pendency [NYSCEF Doc. 146] be and hereby is cancel led, and the Clerk of the Comt shall note the cancellation of the same on the margin of its records: and it is further

ORDERED, that Plaintiffs motion (Mot. Seq. 6) for an extension of time to conduct the foreclosure sale is denied in all respects; and it is further

ORDERED, ADJUDGED AND DECREED pursuant to RPAPL 1501[1] and RPAPL 150 l [4] that Plaintiff and every person claiming under it be forever barred from all claim to an estate or interest in the premises located at 2612 Avenue J, Brooklyn, New York 11210, Block No. 7608, Lot No. 43 , Kings County (the "Premises"); and it is further

ORDERED, ADJUDGED AND DECREED, that the consolidated mortgage recorded on July I 6, 2008 at CRFN 2008000282589, and the first mortgage recorded on February 14, 2005 at CRFN 2005000091798 and the second mortgage recorded on July 16, 2008 at CRFN 2008000282588 (which first and second mortgage were consolidated into a single lien by the consolidated mortgage) are hereby cancelled and discharged of record ; and it is further

ORDERED, that the Office of the City Register is directed to accept and record a certified copy of this Judgment and to mark the land records accordingly. This constitutes the decision, order and judgment of the Court. ENTER: •

/[(rf(fl/((1. - ~ Hon. Menachem M. Mirocznik, JSC

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