TD Bank, N.A. v. Berkovits

2025 NY Slip Op 32480(U)

• Court: New York Supreme Court, Kings County
• Decided: July 11, 2025
• Docket: Index No. 526313/2024
• Status: Unpublished

Opinion

TD Bank, N.A. v Berkovits 2025 NY Slip Op 32480(U) July 11, 2025 Supreme Court, Kings County Docket Number: Index No. 526313/2024 Judge: Carolyn Mazzu Genovesi 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. FILED: KINGS COUNTY CLERK 07/11/2025 10:08 AM INDEX NO. 526313/2024 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 07/11/2025

At an IAS Part FRP-5 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 11 day of July 2025.

Present: Hon. Carolyn Mazzu Genovesi ------------------------------------------------------------------X TD BANK, N.A., 01

Plaintiff, DECISION AND ORDER -against- Index No.: 526313/2024

Mot. Seq. 1 HARRY BERKOVITS AS HEIR TO THE ESTATE OF EVA BERKOVITS, SAMUEL BERKOVITS AS HEIR TO THE ESTATE OF EVA BERKOVITS, FAIGY BERKOVITS A/K/A FAIGE BERKOVITZ AS HEIR TO THE ESTATE OF EVA BERKOVITS, ANY AND ALL OTHER HEIRS TO THE ESTATE OF EVA BERKOVITS, KNOWN OR UNKNOWN, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, UNITED STATES OF AMERICA, ‘JOHN DOE #1’ through ‘JOHN DOE #12’, said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien against the premises,

Defendants, ------------------------------------------------------------------X The following papers were read on this motion pursuant to CPLR 2219(a): Papers NYSCEF Numbered Motion (MS # 1), Affirmation in Support, Exhibits 29-35 Memorandum of Law in Opposition, Exhibit 39, 40 Reply Affirmation 42 Supplemental Affirmation in Opposition, Exhibit 43, 44

On January 24, 2011, Mortgagor, Eva Berkovits entered into a loan transaction whereby

TD Bank provided an equity line of credit for a property located at 5309 12th Avenue, Brooklyn,

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New York. The Mortgage was recorded with the Office of the City Register of the City of New

York, Kings County, on March 7, 2011.

In this third action to foreclose a mortgage Harry Berkovits, Samuel Berkovits, and Faigy

Berkovits (“defendants”) move to dismiss the complaint as barred by the statute of limitations

and because there was another action pending when this case was commenced, pursuant to

CPLR 3211(a)(4).

FACTS

TD Bank, N.A. (“plaintiff”) commenced two actions to foreclose the same subject

mortgage prior to this third action. On February 15, 2018, plaintiff commenced its first action

(503244/2018) to foreclose the subject mortgage (2018 Action). The 2018 Action was voluntarily

discontinued by an Order of Justice Robin K. Sheares dated April 8, 2021, and entered April 15,

2021. On October 9, 2023, plaintiff commenced its second action (529149/2023) to foreclose the

subject mortgage (2023 Action).

After commencing the 2023 action, defendant Eva Berkovits’s attorney answered the

second action on November 11, 2023, providing affirmative defenses and filing interrogatories.

Thereafter pre-settlement conferences were scheduled on January 30, 2024, and April 4, 2024.

At the April 4, 2024, settlement conference, plaintiff learned from defense counsel that the

named defendant in that action, Eva Berkovits, had died in 2022, prior to the filing of the 2023

Action. Thereafter the settlement conference was adjourned for defendant to provide a death

certificate which was produced at the settlement conference on June 5, 2024.

As a result, in the 2023 Action, plaintiff filed a Proposed Order to Show Cause (OSC)

on July 24, 2024, to discontinue the 2023 Action and for leave to commence a new action,

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among other relief. Justice Cenceria P. Edwards (J. Edwards) signed the OSC in August 2024

and made the Order to Show Cause returnable on September 25, 2024. By Order entered on

February 18, 2025, J. Edwards dismissed the 2023 Action and found it was a nullity because the

named defendant, Eva Berkovits, was deceased when the 2023 Action was commenced. That

Court stated in its decision that it found “that dismissal, rather than discontinuance, is the

appropriate remedy.” The Court failed to directly address that branch of plaintiff’s motion for

leave to commence a new action. Nevertheless, the court determined that because Eva Berkovits

was the sole borrower and mortgagor and the only other named defendants are those listed as

“John Doe #1” through “John Doe #12,” and described as possible tenants, occupants, or others,

those anonymous parties had never been identified and therefore this action could not be

maintained solely as against them.

In the interim, on September 27, 2024, plaintiff commenced this third action (2024

Action), without seeking leave of court, in between the date the OSC in the 2023 Action was

argued and heard and before J. Edwards rendered the decision in February 2025. Defendants,

Eva Berkovits’s heirs, now move to dismiss pursuant to RPAPL 1301(3), for failure to seek leave

of court pursuant under CPLR 3211(a)(4) and to dismiss for failure to comply with the statute of

limitations under CPLR 3211(a)(5) on the 2024 Action.

PARTIES’ ARGUMENTS

In this motion defendant asserts the statute of limitations was expired at the

commencement of the 2024 Action. They assert that because that the mortgage was accelerated

on February 15, 2018 (filing of 2018 Action), it expired on February 14, 2024, six years later and

because this third action was filed on September 27, 2024, it was outside the statute of

limitations. Defendant further asserts that the parties’ prior discontinuance on April 8, 2021,

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cannot be considered a deacceleration of the mortgage and a stop to the running of the statute of

limitations because of the change in law under the Foreclosure Abuse Prevention Act (FAPA),

which was passed in December of 2022, and now provides specific requirements for

deacceleration to stop the statute of limitations, which are not present in this action. And further,

because FAPA is retroactive those changes apply to the instant case.

Plaintiff asserts that under the factual circumstances of this matter, justice and equity

warrant estoppel of defendant’s seeking a dismissal because in the 2023 Action, it was unaware

that defendant Eva Berkovits was deceased1 because of defendant’s affirmative wrongdoing.

Plaintiff provides that it was misled as defendant’s counsel continued to participate in the 2023

Action which was in ligation for five months without notifying them that Eva Berkovits was

deceased. Further, that defense counsel’s appearance in the 2023 Action included providing an

Answer, with counterclaims, requesting a loan modification for the deceased defendant, and

actively participating in mandatory foreclosure settlement conferences (February 20, 2024, April

4, 2024) on behalf of the deceased.

Secondly, plaintiff asserts that this 2024 Action is timely because at the time of the filing

of the 2023 Action the statute of limitations had not run. This is because of the Covid-19

Pandemic Executive Orders issued a toll on the statute of limitations for a period of 228 days and

therefore when calculated the statute of limitations did not expire until September 30, 2024, and

because this action was filed on September 27, 2024, it is timely. Thirdly, plaintiff asserts that

although plaintiff is the same party in the prior action but the defendants – Harry Berkovits,

Samuel Berkovits, and Faigy Berkovits– were not named as party defendants in the 2023 Action

1 She was deceased on August 29, 2022

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(only Eva Berkovits, the deceased and John Does were named), under CPLR 3211(a)(4)

defendants cannot claim that they are the same in both actions, as they were not common

defendants and were not substantially identified parties in the prior actions. Therefore, because

there was no substantial identity of the defendants in both actions under CPLR 3211(a)(4), the

court should use its discretion in favor of the plaintiff by determining that the action should not

be dismissed.

LAW AND ANALYSIS

Statute of limitations

To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred

by the applicable statute of limitations, the “defendant bears the initial burden of

demonstrating… that the time within which to commence the action has expired” (U.S. Bank

N.A. v. Gordon, 158 A.D.3d 832,834-845 [2d Dep’t 2018] quoting Stewart v. GDC Tower at

Greystone, 138 A.D.3d 729, 729 [2d Dep’t 2016]). “If the defendant satisfies this burden, the

burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was

tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within

the applicable limitations period” (U.S. Bank N.A. v Gordon at 835 quoting Barry v. Cadman

Towers, Inc., 136 A.D.3d 951, 952 [2d Dep’t 2016]).

The statute of limitations for a mortgage foreclosure action is six years. CPLR 213(4)

provides that:

4. [A]n action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein; (a) In any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the

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instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated.

“When a mortgage is payable in installments, which is the typical practice, an acceleration of the

entire amount due begins the running of the statute of limitations on the entire debt” (Wells

Fargo Bank, N.A. v. Rutty, 206 A.D.3d 862, 863 [2d Dep’t 2022] quoting Deutsche Bank Trust

Co. Ams. v. Marous, 186 A.D.3d 669, 670 [2d Dep’t 2020]). “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

A.D.3d 915, 916 [2d Dep’t 2023]).

On March 20, 2020, former Governor Andrew Cuomo issued executive order No. 202.8

tolling statutes of limitations (Brash v. Richardson, 195 A.D.3d 582, 584 [2d Dep’t 2021]).

Former Governor Cuomo issued a series of nine subsequent executive orders further tolling the

statute of limitations through November 3, 2020 (Id). Accordingly, the statute of limitation was

tolled for a total of 228 days (McLaughlin v. Snowlift, Inc., 214 A.D.3d 720, 721 [2d Dep’t

2023]).

Accordingly, the court finds that the first 2018 Action is based on the same note as the

2023 Action and this 2024 Action. Therefore, pursuant to CPLR 213(4), the 2018 Action

accelerated the mortgage, and the six-year statute of limitations began to run on February 15,

2018. Applying the covid toll of 228 days to the running of the statute of limitations, the court

finds that the statute of limitations did not expire until September 30, 2024, therefore when this

case was filed on September 27, 2024, the statute of limitations had not yet expired.

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Dismissal pursuant to RPAPL 1301(3) and CPLR 3211(a)(4)

Under CPLR 3211(a)(4) a party may move to dismiss a cause of action asserted against

them if “there is another action pending between the same parties for the same cause of action.”

Further “the court need not dismiss upon this ground but may make such order as justice

requires.” A court has broad discretion in determining whether the action should be dismissed

based upon another action pending where there is a substantial identity of parties, the two actions

are similar, and the relief sought is essentially the same (Brestin v LaBianca 144 A.D.3d 722, 723

[2d Dep’t 2016]).

RPAPL 1301(3)

RPAPL 1301(3), as amended by the Foreclosure Abuse Prevention Act (“FAPA”), states:

While the action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, including an action to foreclose the mortgage, without leave of the court in which the former action was brought. The procurement of such leave shall be a condition precedent to the commencement of such other action and the failure to procure such leave shall be a defense to such other action. For purposes of this subdivision, in the event such other action is commenced without leave of the court, the former action shall be deemed discontinued upon the commencement of the other action, unless prior to the entry of a final judgment in such other action, a defendant raises the failure to comply with this condition precedent therein, or seeks dismissal thereof based upon a ground set forth in paragraph four of subdivision (a) of rule thirty-two hundred eleven of the civil practice law and rules. This subdivision shall not be treated as a stay or statutory prohibition for purposes of calculating the time within which an action shall be commenced and the claim interposed pursuant to sections two hundred four and two hundred thirteen of the civil practice law and rules.

The Appellate Division, Second Department has held that FAPA is retroactive and applies

to cases and claims that predate FAPA’s enactment in 2022 (97 Lyman Avenue, LLC v. MTGLQ

Investors, L.P., 233 A.D.3d 1038, 1042 [2d Dep’t 2024]; Deutsche Bank National Trust Company

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v. Dagrin, 233 A.D.3d 1065, 1067-1068 [2d Dep’t 2024]). Moreover, the Second Department has

found the retroactive application of FAPA does not run afoul of the United States or New York

State Constitutions (Id).

Here the court determines that RPAPL 1301(3) is not relevant to this matter since J.

Edwards dismissed the 2023 Action because it was determined that service on a deceased person

was not valid as it is the named personal representative of the decedents’ estate that must be

served. Additionally, where a mortgagor dies prior to the commencement of a foreclosure action

and is served it is a legal nullity (Fed. Natl. Mtge. Assn. v Tudor, 185 A.D.3d 905, 906 [2d Dep’t

2020]). Therefore, because the 2023 Action was determined to be a nullity, the court finds that

there was no “prior action pending” and that plaintiff did not need to seek leave to file this 2024

Action. Additionally, the court finds that the defendants are not substantially the same as in the

2023 Action as J. Edwards also determined in that in the 2023 Action the John Does #1 through #

12 were not identified as the heirs but were identified as possible tenants, occupants or other

anonymous parties.

Accordingly, this court finds that the defendant heirs in this matter are not substantially

the same as in the 2023 Action and therefore dismissal is not warranted on the grounds that they

had another action pending, even though the relief sought is the same.

Equitable relief

Judiciary Law Section 487 provides in subdivision (1) that an attorney who is guilty of

any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or

any party is committing misconduct. The New York Rules of Professional Conduct 22 NY 1200,

also provide that an attorney cannot bring non-meritorious claims, make contentions or provide

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facts that are misrepresentations, make false statements to the tribunal, knowingly assert material

facts, or suppress evidence (See Rules of Professional Misconduct Rule 3.1; 3.3; 3.4).

At oral argument a per diem attorney appeared for defense counsel on this motion and the

Court questioned that attorney as to the misrepresentations made by defense counsel both in the

2023 Action and in the making of this motion to dismiss particularly in regard to the statute of

limitations. The attorney appearing on behalf of defense counsel represented that defense counsel

did not purposely seek to prejudice plaintiff by delaying the dismissal of the 2023 Action thereby

running the statute of limitations for five months to benefit his client. As an excuse for his

numerous affirmative actions on behalf of a deceased person, through per diem counsel, he

provided an explanation that he was the attorney appearing for the family in general, which were

long term clients.

In deciding of this motion, this court cannot determine whether defendant’s counsel was

purposeful in the misrepresentations to gain an advantage. Even so, this court determines that

defense counsel’s behavior was inappropriate, that his actions were misrepresentations and that

the delay of the five months in notification of his client’s death in the 2023 Action placed

plaintiff in a disadvantageous position with regard to running the statute of limitations for them

to file a timely foreclosure action.

Accordingly, the court also denies the defendant’s motion to dismiss on equitable

grounds. For the foregoing reasons it is hereby

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ORDERED that the motion to dismiss (MS #1) is DENIED in all respect.

This constitutes the Decision and Order the Court.

ENTER

Hon. Carolyn Mazzu Genovesi

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