FAPA Renewal Rule: Voluntary Discontinuance Does Not De-Accelerate or Reset the Mortgage Foreclosure Limitations Period

1. Introduction

Bank of N.Y. Mellon v Conforti (2026 NY Slip Op 05262 [2d Dept Sept. 16, 2026]) addresses how the Foreclosure Abuse Prevention Act (FAPA) reshapes timeliness analysis in mortgage foreclosure litigation and how parties may use a CPLR 2221 renewal motion to obtain relief from earlier adverse rulings after a major statutory change.

The plaintiff, Bank of New York Mellon, commenced a foreclosure action in May 2018 against, among others, 35 Pleasure, LLC (a property-interest holder and the appellant). 35 Pleasure defended and counterclaimed under RPAPL 1501(4) to cancel and discharge the mortgage, contending the foreclosure claim was time-barred because a prior foreclosure action had been commenced in December 2011 and later voluntarily discontinued in 2014.

After earlier motion practice and a prior appeal (referenced as Bank of N.Y. Mellon v Conforti, 209 AD3d 942), FAPA took effect (L 2022, ch 821 [eff Dec. 30, 2022]). 35 Pleasure moved for leave to renew its earlier (unsuccessful) statute-of-limitations-based summary judgment cross-motion, arguing FAPA changed the law governing the effect of a voluntary discontinuance on acceleration and the limitations period. The Supreme Court denied renewal and entered an order and judgment of foreclosure and sale. The Second Department reversed.

2. Summary of the Opinion

The Appellate Division, Second Department held that:

  • FAPA constitutes a change in the law supporting renewal under CPLR 2221(e)(2).
  • The December 2011 foreclosure action accelerated the mortgage debt, starting the six-year limitations period.
  • Under FAPA’s amendments, the voluntary discontinuance of the 2011 action did not de-accelerate the debt or reset the limitations period.
  • The limitations period therefore expired in December 2017; the May 2018 foreclosure action was untimely.
  • Challenges to FAPA’s retroactive application and constitutionality were rejected as “without merit.”

Procedurally, the court granted leave to renew, vacated the earlier order denying 35 Pleasure’s dispositive cross-motion, granted summary judgment to 35 Pleasure dismissing the complaint insofar as asserted against it, and granted its RPAPL 1501(4) relief canceling/discharging the mortgage of record. The plaintiff’s request to confirm the referee’s report and obtain a judgment of foreclosure and sale was denied.

3. Analysis

A. Precedents Cited

1) Renewal as the Procedural Vehicle for a Change in Law

The court framed the threshold issue—whether 35 Pleasure could reopen a previously decided limitations defense—through CPLR 2221(e)(2), emphasizing that renewal may be based on “a change in the law that would change the prior determination.” It reinforced this with:

  • U.S. Bank N.A. v Mongru, 241 AD3d 970 (quoted for the proposition that renewal is the appropriate vehicle to seek relief from a prior order based on a change in the law).
  • Opalinski v City of New York, 205 AD3d 917 (cited similarly, supporting renewal when the governing legal rule changes).

These cases matter because they validate reopening even long-settled motion rulings when the Legislature modifies the underlying legal framework, a recurring scenario in foreclosure litigation post-FAPA.

2) The Six-Year Limitations Period and Acceleration Doctrine

The opinion anchored the timeliness analysis in familiar limitations and acceleration rules:

  • Lubonty v U.S. Bank N.A., 34 NY3d 250 (cited for the six-year limitations period governing foreclosure actions under CPLR 213(4) and for core statute-of-limitations principles in mortgage cases).
  • Citimortgage, Inc. v Gunn, 234 AD3d 922 (quoted for the rule that once a mortgage debt is accelerated, the limitations period runs on the entire debt).
  • BHMPW Funding, LLC v Lloyd-Lewis, 194 AD3d 780 (quoted through Gunn regarding acceleration triggering the statute).
  • GMAT Legal Title Trust 2014-1 v Kator, 213 AD3d 915 (quoted through Gunn for the proposition that acceleration occurs, inter alia, by commencing a foreclosure action electing to call due the entire amount).
  • 97 Lyman Ave., LLC v MTGLQ Invs., L.P., 233 AD3d 1038 (cited consistently with the doctrine and later for FAPA’s statutory changes).

These authorities provided the doctrinal “before” picture: acceleration starts the clock; historically, lenders sometimes attempted to undo acceleration to avoid time bars.

3) RPAPL 1501(4) as the Borrower/Property-Holder Remedy

The court reiterated that a party with an interest in the property can affirmatively seek to clear title when the foreclosure claim is time-barred:

  • U.S. Bank N.A. v Medianik, 223 AD3d 935 (quoted for the elements/availability of RPAPL 1501[4] relief).
  • Ditmid Holdings, LLC v JPMorgan Chase Bank, N.A., 180 AD3d 1002 (cited in support of the same proposition).

This line of authority is critical because it frames the remedy as more than a defense: once the limitations period expires, the property-interest holder may obtain a judgment canceling the mortgage of record.

4) The Pre-FAPA De-Acceleration Landscape and FAPA’s Statutory Override

The opinion contrasted the pre-FAPA rule—allowing unilateral revocation of acceleration under certain circumstances—with the post-FAPA statutory regime:

  • FV-1, Inc. v Samuels, 240 AD3d 757 (cited for the pre-FAPA rule that revocation could occur by unilateral affirmative acts, including “a clear and unambiguous de-acceleration letter” or “voluntarily discontinuing a foreclosure action,” during the limitations period).
  • U.S. Bank N.A.. v Mongru, 241 AD3d 970 (cited both for renewal and for the post-FAPA conclusion that voluntary discontinuance does not de-accelerate or reset the limitations period).
  • IPA Asset Mgt., LLC v HSBC Bank USA, N.A., 234 AD3d 948 (quoted via Mongru for the same principle).
  • FV-1, Inc. v Palaguachi, 234 AD3d 818 (cited for FAPA’s effect through CPLR 203(h), disallowing unilateral revival/reset/extension of accrual once the cause has accrued).
  • 97 Lyman Ave., LLC v MTGLQ Invs., L.P., 233 AD3d 1038 (quoted for FAPA’s amendment to CPLR 3217(e): voluntary discontinuance “shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period... unless expressly prescribed by statute”).

These citations show the court treating FAPA as a legislative correction to perceived “reset” tactics, implementing a strict anti-manipulation approach to foreclosure limitations periods.

5) Retroactivity and Constitutionality

The plaintiff argued FAPA should not apply retroactively and attacked its constitutionality. The court rejected both, citing:

  • Article 13 LLC v Ponce De Leon Fed. Bank, ____ NY3d ____, 2025 NY Slip Op 06536
  • FV-1, Inc. v Palaguachi, 234 AD3d 818

While the opinion’s discussion is brief, the citations indicate that, by 2026, appellate authority had solidified that FAPA applies to pending matters and survives constitutional scrutiny—foreclosing recurring lender arguments aimed at preserving older “de-acceleration” doctrines.

B. Legal Reasoning

The court’s reasoning proceeds in a straightforward sequence:

  1. Renewal standard satisfied: Under CPLR 2221(e)(2), renewal is proper because FAPA is a change in the law that “would alter” the prior determination. The court emphasized that renewal is the proper procedural mechanism, relying on U.S. Bank N.A. v Mongru, 241 AD3d 970.
  2. Acceleration date fixed: The six-year clock began in December 2011, when the plaintiff commenced the 2011 action and elected in the complaint to call due the entire amount secured by the mortgage (acceleration by foreclosure complaint).
  3. Effect of voluntary discontinuance under FAPA: With FAPA’s amendments to CPLR 3217(e) and the directive in CPLR 203(h), voluntary discontinuance cannot “in form or effect” de-accelerate, revive, or reset the limitations period.
  4. Limitations expiration and untimeliness: Because discontinuance in 2014 could not reset the clock, the limitations period expired in December 2017; the May 2018 action was filed too late.
  5. Remedy under RPAPL 1501(4): Since the foreclosure claim was time-barred, 35 Pleasure was entitled to summary judgment dismissing the complaint insofar as asserted against it and to its counterclaim canceling/discharging the mortgage of record.

Notably, the court applied FAPA’s text to the operative procedural history without requiring any additional evidentiary development: the dates of the 2011 action, its discontinuance, and the 2018 action were sufficient to resolve timeliness as a matter of law.

C. Impact

The decision reinforces several practical and doctrinal consequences for New York foreclosure litigation:

  • FAPA-driven reopening of earlier adverse rulings: Defendants and property-interest holders can use CPLR 2221(e) renewal to revisit earlier denials of statute-of-limitations arguments when those denials rested on now-superseded pre-FAPA rules (particularly where courts previously treated voluntary discontinuance as a valid de-acceleration/revocation device).
  • Voluntary discontinuance loses “reset” value: By confirming that discontinuance does not de-accelerate after FAPA, the court tightens lender options and increases the importance of careful limitations monitoring once acceleration occurs.
  • Enhanced viability of RPAPL 1501(4) relief: The ruling underscores that once the foreclosure limitations period expires, the property-interest holder may affirmatively clear the mortgage from the record, not merely defend against foreclosure.
  • Reduced traction for retroactivity/constitutionality challenges: With Article 13 LLC v Ponce De Leon Fed. Bank and FV-1, Inc. v Palaguachi cited as dispositive, litigants should expect such challenges to be routinely rejected absent materially different facts or novel constitutional theories.

4. Complex Concepts Simplified

  • Statute of limitations (foreclosure): A foreclosure must be filed within a fixed time—here, generally six years (CPLR 213[4])—or it becomes time-barred.
  • Acceleration: A lender can declare the full mortgage balance immediately due. When acceleration happens, the six-year clock starts running on the entire debt (not just missed installments). This can occur by filing a foreclosure complaint that calls due the full amount.
  • De-acceleration / revocation of acceleration: Before FAPA, courts sometimes permitted a lender to “undo” acceleration by a unilateral act (like a clear de-acceleration letter or discontinuing the foreclosure) within the limitations period, thereby attempting to avoid time bars. FAPA largely eliminates that tactic absent express statutory authorization.
  • Voluntary discontinuance: When a plaintiff chooses to end its own lawsuit. Under FAPA’s CPLR 3217(e) amendment, discontinuance does not waive, toll, extend, revive, or reset the foreclosure limitations period for CPLR 213(4) instruments.
  • RPAPL 1501(4): A mechanism allowing a person with an interest in the property to obtain a judgment canceling/discharging a mortgage from the public record if the foreclosure claim is time-barred—effectively clearing title of that lien.
  • Motion to renew (CPLR 2221[e]): A request to revisit an earlier decision because of new facts or a change in law that would likely change the outcome.

5. Conclusion

Bank of N.Y. Mellon v Conforti consolidates a post-FAPA rule with significant procedural bite: when a prior foreclosure action accelerated the debt, a later voluntary discontinuance does not de-accelerate or reset the six-year limitations period, and FAPA’s enactment justifies renewal to correct earlier rulings that depended on the pre-FAPA framework. The decision strengthens time-bar defenses and RPAPL 1501(4) title-clearing remedies, while further narrowing lender arguments against FAPA’s retroactive application and constitutionality.