§ 619 — Prosecution and defense of actions; actions preferred; limitations; power to execute instruments; exemption from filing and other fees

§ 619. Prosecution and defense of actions; actions preferred;\nlimitations; power to execute instruments; exemption from filing and\nother fees. 1. (a) For the purpose of executing any of the powers and\nperforming any of the duties hereby conferred upon him, the\nsuperintendent may, in the name of any banking organization of which he\nis in possession, prosecute and defend any and all actions. Any such\naction, upon application of the superintendent, shall be entitled to the\nsame preference to which an action by or against a receiver appointed by\nthe court is entitled in any court of the state. Except as provided in\nthe civil practice law and rules for venue for real property actions,\nall actions against a banking organization in the possession of the\nsuperintendent or against the superintendent arising out of its affairs,\nshall be instituted and maintained in a court of record in the county in\nwhich such banking organization maintained its principal place of\nbusiness.\n (b) If the superintendent takes possession of the business and\nproperty of any banking organization entitled to maintain an action,\nbefore the expiration of the time limited for the commencement thereof,\nsuch action may be commenced by the superintendent in the name of such\nbanking organization before the expiration of that time or within one\nyear after taking such possession, whichever date is later.\n (c) Where by any agreement a period of limitation is fixed for\ninstituting an action upon any claim, or for presenting or filing any\nclaim, proof of claim, proof of loss, demand, notice, or the like, or\nwhere in any action or by statute or ordinance, a period of limitation\nis fixed for serving or filing any claim or pleading, taking any appeal,\nor doing any other act, and where in any such case such period had not\nexpired at the date of taking possession of the business and property of\nany such banking organization, the superintendent may for the benefit of\nsuch banking organization institute any such action, serve or file any\nsuch claim or pleading, take any such appeal, or do any such other act,\nrequired or permitted to such banking organization within a period of\none year subsequent to the date of taking of such possession, or within\nsuch further period as may be permitted by the agreement, or in the\naction, or by statute or ordinance, as the case may be.\n (d) (1) Except as provided in this paragraph, unless the federal\nregulator or insurer is appointed as receiver or liquidator, the\nsuperintendent's taking of possession of any banking organization and\nthe liquidation of same shall operate as a stay of and as an injunction\nagainst, as of the date the superintendent takes possession of the\nbanking organization, applicable to all persons or entities, of:\n (i) The commencement or continuation, including the issuance or\nemployment of process, of a judicial, administrative, or other action or\nproceeding against the banking organization that was or could have been\ncommenced before the taking of possession, or to recover a claim against\nthe banking organization that arose before the taking of possession;\n (ii) The enforcement, against the banking organization or the business\nand property of the banking organization in this state, of a judgment\nobtained before the taking of possession;\n (iii) Any act to obtain possession of property of the banking\norganization or of property from the banking organization or to exercise\ncontrol over property of the banking organization;\n (iv) Any act to create, perfect, or enforce any lien against property\nof the banking organization;\n (v) Any act to create, perfect or enforce against property of the\nbanking organization any lien to the extent that such lien secures a\nclaim that arose before the taking of possession; and\n (vi) Any act to collect, assess, or recover a claim against the\nbanking organization that arose before the taking of possession.\n (2) The superintendent's taking of possession of a banking\norganization and the liquidation of same does not operate as a stay of\nor as an injunction against:\n (i) The filing of a claim pursuant to section six hundred twenty of\nthis article in the liquidation of the banking organization; the making\nof a demand upon the superintendent pursuant to section six hundred\neighteen-a of this article to decide whether to assume or repudiate a\ncontract of the banking organization; the exercise of any setoff\notherwise permissible under applicable law except as limited by\nsubdivision two of section six hundred fifteen of this article; the\nright of any secured creditor with a perfected security interest or\nother valid lien or security interest enforceable against third parties\nto retain collateral, including any right of such secured creditor under\nany security arrangement related to a qualified financial contract, as\ndefined in section six hundred eighteen-a of this article, to retain\ncollateral and to apply such collateral in accordance with paragraph (d)\nof subdivision two of section six hundred eighteen-a of this article;\nany automatic termination in accordance with the terms of any qualified\nfinancial contract or any right to cause the termination or liquidation\nof any qualified financial contract, as defined in section six hundred\neighteen-a of this article, in accordance with the terms thereof; any\nright to offset or net out any termination value, payment amount, or\nother transfer obligation arising under or in connection with one or\nmore such qualified financial contracts; or the commencement of an\naction under section six hundred seven of this article or any other\naction relating to the liquidation before the supreme court justice\noverseeing the liquidation of the banking organization;\n (ii) The commencement or continuation of a criminal action or\nproceeding against the banking organization;\n (iii) The commencement or continuation of an action or proceeding by a\ngovernmental unit to enforce such governmental unit's police or\nregulatory power;\n (iv) The enforcement of a judgment, other than a money judgment,\nobtained in an action or proceeding by a governmental unit to enforce\nsuch governmental unit's police or regulatory power;\n (v) The issuance to the banking organization by a governmental unit of\na notice of tax deficiency; and\n (vi) The commencement or continuation of a judicial action or\nproceeding by a secured creditor with a perfected security interest, or\nother valid lien or security interest enforceable against third parties,\nincluding any right of such secured creditor under any security\narrangement related to a qualified financial contract, as defined in\nsection six hundred eighteen-a of this article, to enforce such security\ninterest or lien.\n (3) Except as otherwise provided in this paragraph:\n (i) The stay or enjoining of an act against property of the banking\norganization under this paragraph shall continue until such property is\nno longer the property of the superintendent in possession of the\nbanking organization; and\n (ii) The stay or enjoining of any other act under this paragraph shall\ncontinue until the superintendent has concluded liquidating the banking\norganization.\n (4) For good cause shown, on request of a party in interest and after\nnotice and a hearing, the supreme court justice overseeing the\nliquidation may grant relief from the stay or injunction provided under\nthis paragraph, such as by terminating, annulling, modifying or\nconditioning such stay or injunction.\n (5) In the case of any willful violation of a stay or injunction\nprovided in this paragraph by any person or entity who has knowledge of\nthe superintendent's taking of possession of the banking organization\nthat is the subject of the stay or injunction, the superintendent shall\nrecover actual damages, including costs and attorneys' fees and, in\nappropriate circumstances, may recover punitive damages.\n (e) No action against the superintendent, his or her deputies, special\ndeputies, attorneys, agents or employees, or against a banking\norganization whose business and property have been taken over by him or\nher, with respect to any matter arising out of the liquidation,\nadministration, distribution or other disposition by or on behalf of the\nsuperintendent\n (i) of the estate of such banking organization, or\n (ii) of money or property in its possession or under its control as\nexecutor, administrator, trustee, guardian, committee, conservator, or\nother fiduciary capacity, or as bailee, pledgee, depository, agent or\notherwise, or\n (iii) of money or property in or removed from a safe, vault or box of\nwhich it is or was the lessor, shall be commenced subsequent to either\n(a) three years after the accrual of such cause of action, or (b) the\nexpiration of such period of limitation as may be otherwise applicable\nthereto under the provisions of any other statute, whichever period is\nshorter. A cause of action shall be deemed to accrue within the meaning\nof this paragraph, when the facts upon which such cause of action is\nbased come into existence. Nothing in this paragraph shall be deemed to\nextend or otherwise affect the period of limitation in section six\nhundred twenty-five of this article provided with respect to claims or\ncauses of action therein referred to.\n 2. (a) The superintendent may, in the name of any banking organization\nof which he is in possession, execute, acknowledge and deliver any and\nall deeds, assignments, bills of sale, releases, extensions,\nsatisfactions and other instruments necessary and proper to effectuate\nany sale, lease or transfer of real or personal property or to carry\ninto effect any power conferred or duty imposed upon him by this article\nor by order of the supreme court. Any instrument executed pursuant to\nthe authority hereby given shall be as valid and effectual for all\npurposes as though executed by the officers of the banking organization.\n (b) The superintendent shall not be required to pay any fee to any\nclerk, sheriff, register or other public officer for entering, filing,\ndocketing, registering, recording, executing, issuing a copy,\ntranscript, extract or certificate of, or authenticating or exemplifying\nany paper, record or instrument pertaining to the exercise by the\nsuperintendent of any of the powers conferred or duties imposed upon him\nby any of the provisions of this article, whether or not such paper,\nrecord or instrument be executed by the superintendent and whether or\nnot it is connected with an action.\n 3. The word "action" contained in this section and section six hundred\ntwenty-five of this article is to be construed as including a special\nproceeding or any proceeding therein or in an action. A cause of action\nupon which an action cannot be maintained, as prescribed in this\narticle, cannot be effectually interposed as a defense, set-off or\ncounterclaim.\n