COVID-19 Tolling Applies to the CPLR 205(a)/205-a Six-Month Savings Period in Foreclosure Actions; Dismissal for RPAPL 1306 Noncompliance Is Not “On the Merits”

Introduction

This commentary examines the Appellate Division, Second Department’s decision in Deutsche Bank National Trust Company v. Spanos (2025 NY Slip Op 04548), a foreclosure case that resolves two recurrent issues in New York mortgage litigation:

• Whether the COVID-19 executive orders tolled the six-month recommencement window provided by the savings statutes—CPLR 205(a) and the foreclosure-specific CPLR 205-a; and
• Whether a prior dismissal for failure to comply with RPAPL 1306 (the pre-foreclosure filing with the Department of Financial Services) constitutes a dismissal “on the merits” that would bar reliance on the savings statute.

The court affirmed the denial of the borrower’s motion to dismiss a 2020 foreclosure action as time-barred and for alleged noncompliance with RPAPL 1303 (the “Help for Homeowners in Foreclosure” notice). The decision clarifies how the COVID-19 toll interacts with the six-month recommencement period and reiterates that dismissal for failure to satisfy a statutory condition precedent (RPAPL 1306) is not a merits determination for purposes of CPLR 205(a)/205-a.

Case Background

In 2004, borrower Demetres Spanos executed a $1,140,000 note in favor of Washington Mutual Bank; the mortgage was signed by Demetres and co-defendant Isadora Sidroula Spanos, encumbering residential property in Syosset, New York. The plaintiff, as WaMu’s successor, commenced a foreclosure action in 2010 (the first action), thereby accelerating the debt. In 2020, the Second Department reversed the trial court and dismissed the first action for the plaintiff’s failure to comply with RPAPL 1306 (Deutsche Bank Natl. Trust Co. v Spanos, 180 AD3d 997).

Shortly thereafter, on September 16, 2020, the plaintiff commenced a second foreclosure action on the same mortgage. Isadora moved pre-answer to dismiss the complaint and to cancel and discharge the mortgage, arguing:

• The action was time-barred and did not qualify for recommencement under CPLR 205(a) or 205-a; and
• The plaintiff failed to comply with RPAPL 1303 because the statutorily required colored “Help for Homeowners” notice was not delivered.

The Supreme Court, Nassau County, denied the motion; Isadora appealed.

Summary of the Judgment

The Second Department affirmed, holding:

• The mortgage debt was accelerated with the 2010 first action, and the six-year statute of limitations would have expired in 2016. Although the 2020 second action was beyond that date, the plaintiff could rely on the six-month savings statute (CPLR 205[a] and, by later enactment, CPLR 205-a) because the first action was timely and terminated for a reason other than those disqualifying terminations listed in the statutes.
• Crucially, the Governor’s COVID-19 executive orders tolled the six-month recommencement period. Even though the second action was filed roughly three weeks after the unadjusted six-month window would have closed, the toll made the recommencement timely (Brash v Richards, 195 AD3d 582).
• The dismissal of the first action for noncompliance with RPAPL 1306 was not a “final judgment upon the merits,” so it did not bar recommencement under CPLR 205(a)/205-a (Sabbatini v Galati, 43 AD3d 1136; Johnson v Cascade Funding Mtge. Trust 2017-1, 220 AD3d 929; CitiMortgage, Inc. v Moran, 188 AD3d 407).
• On RPAPL 1303, the plaintiff established compliance through the process server’s affidavit explicitly describing delivery of a colored notice in the required font sizes. The borrower’s bare denial and a witness affidavit not based on direct observation of service were insufficient to rebut the presumption created by the process server’s affidavit (LNV Corporation v Sofer, 171 AD3d 1033; Eastern Sav. Bank, FSB v Tromba, 148 AD3d 675; OneWest Bank, FSB v Cook, 204 AD3d 1025; Bank of Am., N.A. v Keefer, 204 AD3d 970).

Detailed Analysis

1) Precedents Cited and Their Influence

• Acceleration and the six-year statute of limitations
  • Bank of N.Y. Mellon v Mor, 201 AD3d 691, and U.S. Bank N.A. v Connor, 204 AD3d 861: Once the mortgage is accelerated—here, by commencing foreclosure seeking the full balance—the statute of limitations on the entire debt begins to run.
  • U.S. Bank N.A. v Ford, 208 AD3d 1199: Confirms the acceleration occurs with such a foreclosure filing.
• The savings statutes—CPLR 205(a) and CPLR 205-a
  • U.S. Bank N.A. v DLJ Mtge. Capital, Inc., 33 NY3d 72: The bedrock Court of Appeals decision on CPLR 205(a)’s recommencement right after a timely action ends in certain non-merits terminations.
  • Pryce v U.S. Bank, N.A., 226 AD3d 711: Recognizes that the Foreclosure Abuse Prevention Act (FAPA) replaced the use of CPLR 205(a) with CPLR 205-a in foreclosure actions.
  • Sperry Assoc. Fed. Credit Union v John, 218 AD3d 707: Clarifies common elements under both 205(a) and 205-a: a timely first action, a qualifying termination, a new action commenced within six months of “termination,” and timely service.
  • U.S. Bank N.A. v Coleman, 215 AD3d 780: “Termination” for 205(a)/205-a occurs when appeals as of right are exhausted, a key marker for calculating the six-month window.
• COVID tolling and deadlines
  • Brash v Richards, 195 AD3d 582: Holds that the Governor’s COVID executive orders tolled CPLR time limits; here, that toll applied to the six-month recommencement window under 205(a)/205-a.
• “On the merits” versus condition precedent dismissals
  • Sabbatini v Galati, 43 AD3d 1136; Johnson v Cascade Funding Mtge. Trust 2017-1, 220 AD3d 929; CitiMortgage, Inc. v Moran, 188 AD3d 407: Dismissals for failure to satisfy a condition precedent to suit are not “final judgments upon the merits” and thus do not preclude recommencement under the savings statutes. This reasoning squarely supported the court’s treatment of the earlier dismissal for noncompliance with RPAPL 1306.
• RPAPL 1303 notice compliance
  • Eastern Sav. Bank, FSB v Tromba, 148 AD3d 675; Bank of Am., N.A. v Keefer, 204 AD3d 970; OneWest Bank, FSB v Cook, 204 AD3d 1025; LNV Corporation v Sofer, 171 AD3d 1033: These authorities outline the content, formatting, and proof requirements for the RPAPL 1303 notice and establish that a process server’s detailed affidavit creates a presumption of proper service that is not overcome by bare denials.

2) The Court’s Legal Reasoning

The court’s analysis proceeded stepwise:

1. Statute of limitations and acceleration
   • The first foreclosure action commenced March 26, 2010 accelerated the debt, triggering the six-year statute of limitations (CPLR 213[4]). Absent a savings statute, the limitations period would have expired on March 26, 2016.
2. Recommencement via CPLR 205(a)/205-a
   • Because the first action was timely and terminated by the Second Department’s February 26, 2020 decision (not by a disqualifying type of termination), the plaintiff could use the savings statute to recommence within six months of “termination,” with timely service on the original defendant.
   • Critically, the court explains that termination occurs when appeals as of right are exhausted; here, that was the date of the Appellate Division’s decision (U.S. Bank N.A. v Coleman).
3. COVID tolling applies to the six-month window
   • Although the September 16, 2020 recommencement fell roughly three weeks after the six-month mark counted straight from February 26, 2020, the Governor’s COVID executive orders tolled the six-month savings period (Brash v Richards). Because the toll paused the running of time, recommencement during the toll period was timely. Service on Isadora on September 23, 2020 was likewise timely in light of the toll.
4. Dismissal for RPAPL 1306 noncompliance is not “on the merits”
   • The court rejects the borrower’s argument that the prior Appellate Division dismissal was on the merits. Consistent with Sabbatini, Johnson, and CitiMortgage, a dismissal for failure to comply with a statutory condition precedent (here, RPAPL 1306) does not constitute a final merits determination under CPLR 205(a) or 205-a. Therefore, the savings statute remained available.
5. RPAPL 1303 compliance proven; rebuttal insufficient
   • On the notice issue, the process server’s affidavit specifically recited delivery of the RPAPL 1303 notice on colored paper, distinct from the summons and complaint, and in the mandated 14-point type (with a 20-point title). This satisfied the plaintiff’s burden.
   • The borrower’s and a witness’s statements—amounting to “we did not see a colored sheet”—were insufficient. The witness did not observe the service itself. Under LNV v Sofer and related authorities, such bare and unsubstantiated denials do not defeat the presumption created by a facially sufficient affidavit of service.

3) Impact and Significance

• COVID tolling and the savings statute
  • This decision confirms that the COVID-19 executive orders tolled—not merely extended—the six-month recommencement period under CPLR 205(a) and the foreclosure-specific CPLR 205-a. For cases with terminations falling just before or during the early pandemic, recommencements that might look facially late could still be timely once the toll is applied.
• Application under FAPA’s CPLR 205-a
  • While the second action here predated FAPA’s effective date (December 30, 2022), the court reads CPLR 205-a as functionally parallel to CPLR 205(a) for the issues presented—calculation of the six-month window, the concept of “termination,” and the non-merits character of condition-precedent dismissals.
  • The court’s reliance on Pryce and Sperry situates this case within a growing body of Second Department law harmonizing 205(a) and 205-a mechanics, an important guide for post-FAPA foreclosure litigation.
• Condition-precedent dismissals and recommencement
  • By reiterating that a dismissal for RPAPL 1306 noncompliance is not “on the merits,” the decision preserves lenders’ access to the savings statute after procedural missteps in the first action. Borrowers should be mindful that winning a dismissal for noncompliance with RPAPL 1304/1306 or similar conditions may not end the litigation if the lender can timely recommence.
• Proof of RPAPL 1303 compliance
  • The court confirms that a process server’s affidavit reciting the notice’s color and font requirements suffices to establish prima facie compliance with RPAPL 1303. Borrowers seeking to rebut this presumption will need specific, competent evidence—mere assertions that the documents looked like “plain white paper” after the fact, especially by someone who did not witness the service event, will be inadequate.

Complex Concepts Simplified

• Acceleration
  • When a lender accelerates a mortgage, it demands immediate payment of the entire loan balance. In New York, this starts the six-year statute of limitations on the whole debt. Filing a foreclosure complaint that seeks the full balance typically constitutes acceleration.
• RPAPL 1303 vs. 1304 vs. 1306
  • RPAPL 1303: Requires a specific “Help for Homeowners in Foreclosure” notice to be served with the summons and complaint, on colored paper, in bold type (14-point, with a 20-point title).
  • RPAPL 1304: Requires the 90-day pre-foreclosure notice to be sent by specified mailings before commencing suit (not directly at issue in this appeal).
  • RPAPL 1306: Requires the lender to file certain information with the New York State Department of Financial Services within three business days after mailing a 1304 notice; compliance is a condition precedent to filing a foreclosure action.
• CPLR 205(a) and CPLR 205-a (the “savings statutes”)
  • These provisions allow a plaintiff who timely filed an earlier action that was dismissed for certain non-merits reasons to file a new action arising out of the same transaction/occurrence within six months of the “termination” of the prior action, with timely service.
  • CPLR 205-a, created by FAPA, is specific to real property actions and supplants 205(a) in foreclosure cases. For the issues in this appeal, both operate similarly (timing, termination, service), though 205-a also contains foreclosure-specific limitations not implicated by this dismissal type.
• “Termination” for recommencement purposes
  • The six-month period starts when appeals as of right are exhausted. If there is no appeal as of right from the Appellate Division’s order, the date of that order is the termination date for 205(a)/205-a calculations.
• Tolling versus extension (COVID orders)
  • A toll pauses the running of a time period; the clock stops and resumes later. An extension simply pushes a deadline to a new date. Brash held the COVID executive orders tolled CPLR time periods, so time did not run during the toll, making filings during the toll (or within the remainder of the clock afterward) timely.
• “On the merits” versus “condition precedent” dismissal
  • A dismissal “on the merits” resolves the substantive rights and bars refiling. By contrast, a dismissal for failure to satisfy a condition precedent (like compliance with RPAPL 1306) is procedural and does not bar recommencement under the savings statute.
• Presumption from a process server’s affidavit
  • A sworn, detailed affidavit of service creates a presumption that statutory service requirements were met. To rebut it, a defendant must offer a specific, credible, and non-conclusory showing; bare denials are generally insufficient.

Key Timelines and Practical Takeaways

• Timeline highlights
  • March 26, 2010: First foreclosure action commenced, accelerating the debt.
  • February 26, 2020: Appellate Division dismisses first action for RPAPL 1306 noncompliance—this is the “termination” date for savings-statute purposes.
  • March 20, 2020 to early November 2020: Executive orders toll CPLR time limits (Brash).
  • September 16, 2020: Second action filed during the toll period.
  • September 23, 2020: Personal service on Isadora; process server recites RPAPL 1303 compliance.
• Practice pointers
  • Lenders: When a prior action ends close to the pandemic tolling period, carefully compute the six-month window under CPLR 205(a)/205-a by excluding tolled days. If recommencing, ensure service is timely within the adjusted window.
  • Borrowers: To challenge RPAPL 1303 compliance, gather concrete, contemporaneous evidence tied to the service event; general statements of document appearance after delivery are unlikely to carry the day.
  • All parties: Distinguish “on the merits” dismissals from condition-precedent dismissals. The latter typically leaves the door open to a new action under the savings statute, subject to timing and service requirements and any FAPA-specific limits.

Conclusion

Deutsche Bank Natl. Trust Co. v. Spanos cements two practical and doctrinal points in New York foreclosure litigation. First, consistent with Brash v Richards, the COVID-19 executive orders tolled the six-month recommencement period under CPLR 205(a) and foreclosure-specific CPLR 205-a, enabling lenders to recommence during or after the toll without forfeiting the savings statute’s protection. Second, a dismissal for failure to comply with RPAPL 1306 is not a “final judgment upon the merits,” and thus does not preclude recommencement under the savings statutes.

The court also reinforces a strict but workable approach to RPAPL 1303: a detailed process server affidavit is potent proof of compliance, while bare denials—especially from non-witnesses to service—will not suffice to defeat the presumption. Going forward, this decision will guide timing analyses for recommenced foreclosure actions in the pandemic’s wake and clarify the evidentiary burden litigants face on statutory notice compliance.