US Bank v. Mclean

2025 NY Slip Op 32140(U)

Opinion

US Bank v Mclean

2025 NY Slip Op 32140(U)

June 11, 2025

Supreme Court, Kings County Docket Number: Index No. 505172/2016 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 06/16/2025 04:11 PM INDEX NO. 505172/2016 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 06/16/2025

At an IAS Term, Part FRP-5, of the Supren:1e Cou1t ofthe State ofNew York, held in and for the County ofKings,at the Courthouse; at 360 Adams Street, Brnok!y1~, New York, on the JI day of Ju-,. . . . . .I DC-1 p 1)

~1 ~

PRES,ENT:

Hon. qarolyn Mazzu Genovesi,

Index No.: 505172/16

----'-----------------x US BAt-!K,

PlaintifL DECISION ANI) ORDER -age/inst-

TAUNYA MCLEAN et al;

Defendant,

_ __;___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ x

iRecitation,.as required by CPLR §2219 (a), of the papei"s considered i11 the review bf this Motion: ! Papers · · · Numbered Motioni(MS 6} _I Opp/Crpss (MS 7) __l Reply/~pp to Cross _1 Cross-rply _A

!Upon ! .

the foregoing

. ...

cited papers, the Decision/Order on this Motion is as follows:

!Plaintiffs purported predecessor in ii1terest conunenced an-earlier action tu foreclose the

subjec, mortgage, on August 28, 2008 (LaSalle Bank, NA. as Trustee.for the :MLMI Trust Series

2006.,ARJ, Index No. 24718/2008). Attrial on October 8, 2015, Justice Noach Dear dismissed the

2008 qomplaint on the grounds that one of plaintiff's counselor failed to appe<1.r at trial and !'

presen{ed

;

no evidenc.e. to .prove plaintiffs case .. Theinstant action was commenced .

on April 5,

.2016, Jnd Defettdants jointly answered through counsel. tater that year, Plaintiff filed. a mot10n j . . . .

!! . . . : .

seekingI summary judgrnent ..

and a11 order of.reference. Defendants ·opposed and .

cross-moved fot

.disrriis*aJ and judgmem on their quiet title counterclaini, arguing that res judicata frmn the prior I!

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FILED: KINGS COUNTY CLERK 06/16/2025 04:11 PM INDEX NO. 505172/2016 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 06/16/2025

action 1and the statute of li1nitations both ba1Tcd this action, Plaintiff responded that the trial

decisioh in the prior action was not on the merits and the instant case tirnely tinder CPLR 205 [a].

Defendants rep lied that the dismissal w,ts on the metits and that, assuming arguendo that the Court ' .

reathe~ the issue; CPLR 205 [a J was not applicable as service upon Roger McLean was 110t timely

compl~ted. By order dated October 29, 2018, Defendants' Ci'oss-hlotion was granted upon a

findin~that the trial determination Was on the merits. This case was dismissed and quiet title was

grante9.

!Plaintiff appealed. On October 12, 2022, the Appellate Division ret'ersed - finding that ; :

Detenqants failed to deinonstrate ''that the prior action was tenninated on the merits." More

1·eleva,,tly, in addressing the quiet title countei'.claim the pa11el found that the instant action was ! . . .

timely /)ommeitced i.mder CPLR 205[a].

!Plaintiff now moves for summary judgment and an orderofreference. Defendants oppose

and cross-move for dismissal, alleging that the instant action is untimely. They also argue that

Plainti~'fs

i

motion should be denied as it has not demonstrated its standing . .

and

.

compliance with

!

RP APL 13 04. Further, Defend ants seek to amend their answei' to asse1t that Plainti ff fai Ied to

i

timely ~otify them of servicer changes as requited by 12 USC 2605 and that Plaintiffs reformation ' !

claim i$ untimely, Plaintiff opposes.

iDefendants contend that this action is time,..barred, under CPLR 205-a. The Foreclosure

Abuse prevention Act,of 2022 (F APA) "amends CPLR 205 to providethat it no longer applies to

mortgake

. I

fo1'.eclosure

.

actions(CPLR205[cl); : ..

and.creates a hew statute, CPLR, 205-a.'' (OS Bank

I

Ne, t ion}! Associa ri 0;1.

l

vflix, 21 6 AD3 d 445, 446 [1st Dept 202 3]}.. It1 Deut~t. he Bai1 k Nat for'lal · Trast d:omj.wny v Zak, 235 AD3d 839, 843 [2d Dep't 2025], the Appellate D1visi01i, Second

Depart1~ent held the FAPA's addition of CPLR 205-a is fotroactive.. Moreovet, the Second ;

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FILED: KINGS COUNTY CLERK 06/16/2025 04:11 PM INDEX NO. 505172/2016 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 06/16/2025

Depm1~_e.nt found that re.t_roactive. :applic~ti.m1 of FAPA did not ctnitravene the United States -◊r ~ ' '

New Yprk State Constitu_tion. (Deutsche Ba_nkNqt/. Tru.\:t Co, v Dagi·i_n~ 233 AD3d I 065 [2dDep't ~ : :

2024}; i97 Lyrnan Ave,. LLC v MTGLQ investors, L.A, 233 AD3d 1038 [2d D¢p't 20241) .

.! . . . :

;CPLR205~a allows· a plaintiff to coinmenc·e: a new action within six months following the ~ . :

i

.terrnin~tion of an. ihifi:al action:, under certah1 specific circumstai1ces. CPLR 205-a(l) includes a

provisi~n that CPLR205[a] does not have, which provides ,iasuccessor in interest oran assignee

of the hi-iginal plaintiffshaJl not be permitted to co"rr1mence the new action, unless ·pleading and

f

i">rovink that such assignee is acting on _behalf of the· .origi1ial _plaintiff."; This .action was 'i

cbmm~rtced on Api'il. 5, 2016:, within six months.. of the October K 2015 dismissal of the prior . '

action,1 If the CPLR205-a toll applies, this action is.tiiiiely; it' plaintiff cannot:be;11efitfrom . CPLR

! : .

.205,a,jthis action is time-barred.

f

!IIn its complaint,- plaintiff ple;:ads ''[i]he .mortgage was subseqttently assigned to U.S.- Bank =

;

Nationhl Association,'as Trustee, sttccessor i11 interest to Batik of America, National Association,

as truJtee,

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successor by merger to LaSalle Bank Nationar Association, as Trustee .

of.Mertill Lynch

.

!

Mortg~ge Irtvestot Trus~. Mortg_age Loan- Assets-Backet;(· Certificates, Series .

jW06".AR1 ..., "

~ . . .

~

LaSa.11~ Bank was the plaintiff in the. original. ln affidavit in support of pl~intiff's motion, the . ~

' '

Executive Associate of plain.tiff'·s· loan se1yicer,. attest to_ the Felece~i Davis,

.

the Docurnerit

: :

a~sig~ent of the lilo,rtgage from: LaSalle Batik, N.A: to Bank ofAni.erica, N.A. as-successor in

mer~el ·aµd subsequently assign~d from Bank of America, N .A. to j>laintiff. 'NYSCEF No,• I 60,

Hmveyer, plaintiffproyides no evidence to indicate thatBailkof America, N;A. was LaSalle Baiik,

N.A's!·successor in interest. Acc9rdingly, the Co~nt finds· plaintiff .did not .. p:i;ove" ·it is an

"assigyee [that] is acting on behalf of the original plo,intiff for the purpose QfCPLR 205-a and

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therefi e cannot benefit from the toll provided by CPLR 205-a. Defendants' cross-motion

therefore must be granted, dismissing the complaint.

The Court notes that the Appellate Division, Second Department previously held that this

action as timely commenced, applying CPLR 205(a) (US. Bank National Association v McLean,

I

209 A 1 3d 792, 794 [2d Dept 2022]). However, that ruling was handed down on October 12, 2022,

before PAPA was enacted on December 30, 2022. Since a retroactive change of law occurred

during the litigation of this case, the Appellate Division's prior decision does not preclude

dismis al of this action as time barred. (Lipp v. Port Authority of New York and New Jersey, 57

AD3d 53, 954 [2d Dept 2008].

Additionally, the Comi finds that Plaintiff has not demonstrated strict compliance with

RPAP 1304. While its affiant states that the servicing records show that the 90-day notices were

regular and certified mail, no evidence of mailing has been proffered. In light of the Court's

deter ·nation that this action must be dismissed, the Court will not address plaintiff's motion. For

the for oing reasons, it is

ORDERED that Plaintiffs motion, inter alia, for summary judgment and to appoint a

referee is DENIED (MS# 6); and it is further

ORDERED that Defendants' cross-motion 1s GRANTED, and the complaint is

DISM SSED (MS #7).

This constitutes the decision and order of the Court.

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