No Vested Right in Dilatory Foreclosure Prosecutions: Retroactive Application of FAPA and CPLR 205-a in MCLP Asset Co., Inc. v. Zaveri

I. Introduction

MCLP Asset Co., Inc. v. Zaveri, 2025 NY Slip Op 06403 (4th Dept Nov. 21, 2025), is a significant Appellate Division decision interpreting New York’s Foreclosure Abuse Prevention Act (“FAPA”) and, in particular, the new savings statute applicable to mortgage foreclosures, CPLR 205-a.

The case arises from a long-running residential mortgage foreclosure dispute. A 2012 foreclosure action was allowed to languish and was eventually dismissed as abandoned under CPLR 3404. A new foreclosure action was then filed in 2019 and, in an earlier appeal, the Fourth Department held that the 2019 action was timely under the former, more borrower-unfriendly savings statute, CPLR 205(a).

After that first appellate victory for the lender, the Legislature enacted FAPA in 2022 to combat perceived abuses in foreclosure litigation and to overturn certain judicial interpretations thought to be overly favorable to lenders. Among other things, FAPA:

• Created a foreclosure-specific savings statute, CPLR 205-a;
• Amended CPLR 205 to make it inapplicable to cases covered by CPLR 205-a (CPLR 205(c)); and
• Declared that FAPA applies to all mortgage actions in which a final foreclosure judgment has not yet been enforced.

In this appeal, the assignee-plaintiff MCLP argued that FAPA should not be applied retroactively to strip it of the benefit of the prior Fourth Department decision applying CPLR 205(a), and that retroactive application would violate due process. The court rejected both arguments, aligned the Fourth Department with the other Departments on FAPA’s retroactivity, and affirmed dismissal of the foreclosure as time-barred.

The decision is especially notable for its constitutional analysis: the court holds that a foreclosing plaintiff has no constitutionally protected reliance interest in its predecessor’s dilatory prosecution of a prior action, and therefore no vested right to use a savings statute to revive an action dismissed for neglect.

II. Summary of the Opinion

The Fourth Department unanimously affirmed Supreme Court’s order and judgment denying MCLP’s motion for summary judgment and granting summary judgment to defendant-borrower Zaveri, dismissing the foreclosure complaint as time-barred.

The court’s core holdings are:

1. FAPA, including CPLR 205-a and the related amendment to CPLR 205, applies retroactively.
   The court finds that the statutory text, effective-date clause, and legislative history reflect a clear legislative intent that FAPA apply to all pending foreclosure actions in which a final foreclosure judgment has not been enforced.
2. CPLR 205-a does not salvage this foreclosure action.
   The 2012 foreclosure action was dismissed under CPLR 3404 for neglect to prosecute, and CPLR 205-a expressly withholds the six-month extension where the prior action was dismissed for “any form of neglect,” including dismissals under CPLR 3404. Additionally, CPLR 205-a limits its protection for successors and assignees, and those conditions were not satisfied here. Because FAPA also makes CPLR 205(a) inapplicable to such mortgage actions, the 2019 action is time-barred.
3. Retroactive application of FAPA, including CPLR 205-a, does not violate due process.
   Applying the usual rational-basis standard for retroactive civil legislation, the court holds that FAPA serves a legitimate legislative purpose—correcting perceived abuses and clarifying statutory meaning—and that retroactive application is rationally related to that purpose. As applied to MCLP, FAPA does not impair any vested or substantive right, because:
   • the only relevant “conduct” was the predecessor’s neglect of the 2012 action, which was dilatory both before and after FAPA; and
   • the prior favorable appellate decision applying CPLR 205(a) did not itself create a constitutionally protected reliance interest in using a savings statute to overcome that neglect.
4. Supreme Court properly searched the record and granted summary judgment to defendant.
   Since application of FAPA rendered the action untimely, the trial court appropriately used CPLR 3212(b) to search the record and dismiss the complaint.

III. Detailed Analysis

A. Factual and Procedural Background

1. The 2012 foreclosure action and dismissal under CPLR 3404

In 2012, a predecessor in interest to MCLP commenced a residential mortgage foreclosure action against Zaveri (the “2012 action”). The action was then allowed to sit dormant.

On March 2, 2016, Supreme Court’s clerk “pre-marked” the case off the calendar—a preliminary administrative step signaling inactivity. Under CPLR 3404, if a case marked off the trial calendar is not restored within one year, it is deemed abandoned and dismissed. On March 2, 2017, by operation of CPLR 3404, the 2012 action was deemed abandoned and dismissed.

The plaintiff in the 2012 action unsuccessfully sought to vacate that dismissal and restore the case to the calendar. An appeal from the denial of that relief was later dismissed in 2018 for failure to perfect under the court rules (22 NYCRR 1250.10[a]).

2. The 2019 foreclosure action and the first appeal

On April 2, 2019, another predecessor in interest, MTGLQ Investors, LP (“MTGLQ”), commenced the present foreclosure action based on the same mortgage. Zaveri moved for summary judgment, arguing that the six-year statute of limitations on mortgage foreclosures (CPLR 213[4]) had expired, rendering the action time-barred.

Supreme Court initially accepted that limitations defense and dismissed the complaint. On appeal, however, the Fourth Department reversed and reinstated the complaint in MTGLQ Invs., LP v. Zaveri, 210 AD3d 1387 (4th Dept 2022). In that earlier decision, the court held that CPLR 205(a)—New York’s general “savings statute”—extended the time to refile, saving the 2019 action from being untimely.

It is a key premise in the present opinion that, absent an available savings provision, the 2019 action is undisputedly time-barred.

3. Enactment of FAPA (Foreclosure Abuse Prevention Act)

Shortly after the Fourth Department’s 2022 decision, the Legislature enacted FAPA (L 2022, ch 821, eff. Dec. 30, 2022). FAPA is expressly directed at “abuses of the judicial foreclosure process and lenders' attempts to manipulate statutes of limitations.” It applies:

“to all actions commenced on an instrument described under [CPLR 213(4)] in which a final judgment of foreclosure and sale has not been enforced” (L 2022, ch 821, § 10).

Because CPLR 213(4) covers actions “upon a mortgage of real property,” FAPA facially applies to this foreclosure.

FAPA effected two crucial changes relevant here:

• It added CPLR 205-a, a special savings statute governing actions “upon an instrument described under CPLR 213(4).”
• It amended CPLR 205 to add subdivision (c):
  “This section … shall not apply to any proceeding governed by [CPLR 205-a].”

In other words, for mortgage foreclosure actions, the general savings statute CPLR 205(a) is no longer available; only the narrower CPLR 205-a may be invoked.

4. Post-FAPA proceedings in Supreme Court

After this Court had already reinstated the complaint under pre-FAPA CPLR 205(a), MTGLQ assigned the mortgage to MCLP. MCLP moved for summary judgment on the foreclosure claim and for substitution as plaintiff. Zaveri cross-moved for leave to amend her answer to assert new affirmative defenses grounded in FAPA—essentially, that:

• CPLR 205(a) no longer applied; and
• CPLR 205-a did not save the action.

Supreme Court granted substitution, allowed amendment of the answer, and thereafter held that:

• FAPA (including CPLR 205-a) applies retroactively; and
• MCLP failed to show that retroactive application was unconstitutional.

The court then denied MCLP’s remaining motion and, “searching the record” under CPLR 3212(b), granted summary judgment for Zaveri, dismissing the complaint as time-barred.

MCLP appealed that determination, raising both statutory-interpretation and constitutional arguments.

B. Statutory Framework and FAPA’s Design

1. The pre-FAPA savings statute: CPLR 205(a)

Before FAPA, the general savings statute, CPLR 205(a), provided that if a timely commenced action was terminated for certain reasons short of a final adjudication on the merits, the plaintiff could commence a new action based on the same transaction within six months of termination. The statute contained several exclusions, including for voluntary discontinuance, lack of personal jurisdiction, and dismissals for “neglect to prosecute” when the court made specific findings of a “general pattern of delay.”

Over time, courts developed case law interpreting when a dismissal constituted “neglect to prosecute” for purposes of barring use of CPLR 205(a), and whether the trial court’s failure to recite specific “pattern of delay” findings on the record precluded application of that bar. Some decisions had, in the Legislature’s view, allowed lenders to escape the consequences of neglectful litigation practices on the basis of such formalistic requirements.

2. FAPA’s foreclosure-specific savings statute: CPLR 205-a

FAPA introduced CPLR 205-a for actions “upon an instrument described under CPLR 213(4),” which includes mortgage foreclosure actions. The court quotes CPLR 205-a as providing, in relevant part:

“If an action upon an instrument described under [CPLR 213 (4)] is timely commenced and is terminated in any manner other than a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for any form of neglect, including, but not limited to those specified in … [CPLR 3404,] … the original plaintiff … may commence a new action upon the same transaction or occurrence … within six months following the termination.”

Two features of CPLR 205-a are central in this case:

1. Neglect-based dismissals are categorically excluded.
   If the prior action ended in a “dismissal of the complaint for any form of neglect,” the savings statute does not apply. The statute expressly includes dismissals under CPLR 3404 within this exclusion, but uses the phrase “including, but not limited to,” signaling that other neglect-based dismissals are also covered.
2. Protection of successors and assignees is limited.
   CPLR 205-a(a)(1) provides that a successor in interest or assignee can benefit from the six‑month extension only if it “plead[s] and prov[es] that such assignee is acting on behalf of the original plaintiff.” This is more restrictive than CPLR 205(a), which did not contain an equivalent express limitation.

FAPA also deliberately dropped from CPLR 205-a the language in CPLR 205(a) requiring the court to recite on the record the specific neglectful conduct demonstrating a general pattern of delay. As the opinion explains, this change was intended to overrule decisions that had treated such recitations as a condition precedent to finding “neglect to prosecute.”

3. FAPA’s scope and effective clause

Two provisions are especially important for retroactivity:

• FAPA states that it “shall take effect immediately” (L 2022, ch 821, § 10). While such language is not, by itself, conclusive on retroactivity, the Court of Appeals has recognized that it can “evince[] a sense of urgency.”
• Section 10 further provides that FAPA “shall apply to all actions commenced on an instrument described under [CPLR 213(4)] in which a final judgment of foreclosure and sale has not been enforced.”

Because this foreclosure action had not resulted in an enforced final judgment, FAPA’s text facially includes it within its reach.

C. Retroactivity of FAPA and CPLR 205-a

1. General doctrine: prospective vs. retroactive statutes

The court begins with established New York principles on statutory temporal reach:

• Presumption of prospectivity. “Statutes are generally applied prospectively in the absence of express or necessarily implied language allowing retroactive effect” (Dorfman v. Leidner, 76 NY2d 956, 959).
• Retroactivity disfavored, but remedial statutes differ. Retroactive operation is “not favored” unless the statutory language “expressly or by necessary implication” requires it (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584). However, remedial legislation “should be given retroactive effect in order to effectuate its beneficial purpose” (Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117, 122).

To determine retroactive intent, courts consider factors including:

• whether the Legislature made a specific pronouncement about retroactivity or conveyed urgency;
• whether the statute was designed to rewrite an unintended judicial interpretation; and
• whether the enactment reaffirms a legislative judgment about what the law “should be” (Gleason, 96 NY2d at 122–23).

2. Legislative intent: FAPA as clarificatory and remedial

The Fourth Department joins the First, Second, and Third Departments in holding that, on these criteria, the Legislature clearly intended FAPA to apply retroactively to pending foreclosure actions.

The court relies on:

• Textual indications. The “take effect immediately” clause evidences urgency (Brothers v. Florence, 95 NY2d 290, 299). More importantly, the clause applying FAPA to all mortgage actions where a final foreclosure judgment has not been enforced “would necessarily give FAPA retroactive effect,” since it captures actions already commenced before enactment.
• Legislative findings and bill jackets. The Legislature explicitly stated (Assembly and Senate Memoranda in Support, Bill Jacket, L 2022, ch 821):
  • There was an “ongoing problem with abuses of the judicial foreclosure process and lenders' attempts to manipulate statutes of limitations.”
  • Those problems were “exacerbated by recent court decisions” that, in the Legislature’s view, departed from its original intent and enabled lenders to avoid strict compliance with remedial statutes.
  • The “purpose of the present legislation is to clarify the meaning of existing statutes, and to rectify these erroneous judicial interpretations thereof.”

The court emphasizes that such language is classic “clarificatory” legislation—that is, legislation intended to “clarify what the law was always meant to say and do” (Majewski, 91 NY2d at 585) and “remediate the impact” of prior court decisions (Brothers, 95 NY2d at 300). Clarificatory and remedial statutes are among those where retroactivity is most readily inferred.

As to CPLR 205-a specifically, the court notes that:

• The Legislature modeled it on CPLR 205(a) but deliberately omitted the requirement that a court recite on the record the specific conduct constituting neglect to prosecute. That requirement had generated “erroneous judicial interpretations” giving lenders undue leeway to invoke the savings statute even after neglect-based dismissals.
• In the Senate Memorandum, the Legislature explained that this omission was meant to correct those “erroneous judicial interpretations” and to promote “finality, certainty and predictability” in foreclosure litigation.

From this, the court concludes that the Legislature intended CPLR 205-a, like the rest of FAPA, to apply retroactively to pending cases.

3. Alignment with other Departments

The opinion expressly aligns the Fourth Department with:

• Genovese v. Nationstar Mtge. LLC, 223 AD3d 37 (1st Dept 2023);
• FV-1, Inc. v. Palaguachi, 234 AD3d 818 (2d Dept 2025);
• Bank of N.Y. Mellon v. Richards, 233 AD3d 1250 (3d Dept 2024); and
• Deutsche Bank Natl. Trust Co. v. Vista Holding, LLC, 239 AD3d 830 (2d Dept 2025); Collins v. Bank of N.Y. Mellon, 227 AD3d 948 (2d Dept 2024).

All of those decisions read FAPA’s text and history to mandate retroactive application, particularly to actions—like this one—that had not yet culminated in an enforced foreclosure judgment when FAPA took effect.

D. Application of CPLR 205-a to This Case

1. Why CPLR 205-a does not extend the limitations period here

Once the court concludes that FAPA applies retroactively, the central question is whether CPLR 205-a gives MCLP the same kind of six-month extension that CPLR 205(a) had previously provided.

The court answers unambiguously: no. There are two independent reasons.

a. The first action was dismissed for “neglect,” which CPLR 205-a categorically excludes

The 2012 action was dismissed as “abandoned” under CPLR 3404 after being pre-marked off the calendar and not restored within a year. The Fourth Department had previously characterized this as a dismissal for “neglect to prosecute” in the earlier appeal (MTGLQ Invs., LP v. Zaveri, 210 AD3d at 1388), and nothing in the present opinion disturbs that characterization.

CPLR 205-a expressly provides that the six-month extension does not apply where the prior action was terminated by:

“a dismissal of the complaint for any form of neglect, including but not limited to those [grounds] specified in … [CPLR 3404].”

Thus, a CPLR 3404 abandonment dismissal falls squarely within the exclusion. And because FAPA deliberately omitted any requirement that the court spell out the “pattern of delay” or specific neglectful conduct in the dismissal order, it is “of no moment” that the court in 2017 did not explain its detailed reasons for dismissal. The mere fact that the case was dismissed under CPLR 3404 suffices to classify it as neglect-based for purposes of CPLR 205-a.

Put differently, lenders can no longer argue that a dismissal under CPLR 3404 (or another neglect-based provision) does not trigger the “neglect” exclusion merely because the dismissal order lacks a particularized recitation of dilatory behavior. FAPA closes that loophole.

b. Successor/assignee limitations were not met

Even if the first action had not been dismissed for neglect, CPLR 205-a further restricts who may invoke the savings provision. Subdivision (a)(1) states that:

the extension is unavailable to “a successor in interest or an assignee of the original plaintiff … unless [the successor or assignee] plead[s] and prov[es] that such assignee is acting on behalf of the original plaintiff[.]”

Here:

• MTGLQ (the 2019 plaintiff) and MCLP (the subsequent assignee and appellant) are not the same entity as the plaintiff that commenced the 2012 action; and
• Neither MTGLQ nor MCLP pleaded or proved that the 2019 action was being prosecuted “on behalf of” the original 2012 plaintiff.

The court notes that this point is undisputed on appeal. As a result, even independent of the “neglect” problem, CPLR 205-a’s protection is unavailable to MCLP as an assignee who failed to satisfy the “acting on behalf of” requirement.

2. Why MCLP cannot fall back on CPLR 205(a)

Under FAPA, MCLP cannot resort to the preexisting CPLR 205(a) as a fallback. The amendment to CPLR 205 (new subdivision c) explicitly provides that CPLR 205(a) “shall not apply to any proceeding governed by [CPLR 205-a].” Because this is an action “upon a mortgage of real property” covered by CPLR 213(4), CPLR 205-a is the exclusive savings provision.

Since CPLR 205-a does not extend the statute of limitations for this case, the Fourth Department affirms Supreme Court’s conclusion that the 2019 action is time-barred. On that basis, it approves Supreme Court’s use of CPLR 3212(b) to search the record and grant summary judgment to Zaveri.

E. Due Process and Retroactive Application of FAPA

1. General constitutional standard for retroactive civil legislation

The opinion next addresses MCLP’s constitutional challenge, framed as a violation of due process arising from FAPA’s retroactive application. The court first confirms that the issue is properly before it because MCLP gave the Attorney General the required notice of a constitutional challenge (CPLR 1012[b]; Executive Law § 71; distinguishing Matter of Rochester Police Dept. v. Duval, 232 AD3d 1247).

Substantively, the court restates the well-established due-process framework:

• Legislation is entitled to a “strong presumption of constitutionality,” overcome only if it is shown “beyond reasonable doubt” to conflict with the Constitution (Cohen v. Cuomo, 19 NY3d 196, 201–02).
• Retroactive application of a civil statute satisfies due process if justified by a “rational legislative purpose” (American Economy Ins. Co. v. State of New York, 30 NY3d 136, 158, quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 US 717, 730).

The court also draws on Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 NY3d 332, and Landgraf v. USI Film Prods., 511 US 244, which explain that retroactivity is constitutionally suspect when a statute:

• impairs rights a party possessed when it acted;
• increases a party’s liability for past conduct; or
• imposes new duties with respect to completed transactions.

2. Facial challenge: FAPA as a rational remedial measure

As a facial matter, the court has little difficulty upholding FAPA’s retroactive reach. It reasons that:

• FAPA was enacted “to clarify existing law, overrule erroneous judicial interpretations, and prevent abusive foreclosure practices.” That is plainly a legitimate legislative purpose.
• Retroactive application is reasonably related to that purpose because the perceived abuses and misinterpretations were already affecting pending foreclosure cases; limiting FAPA to future filings would only partially address the problem.

Citing FV-1, Inc. v. Palaguachi, 234 AD3d at 823, the court concludes that “[r]etroactive application of the subject FAPA provisions is supported by a legitimate legislative purpose that is furthered by rational means.”

3. As-applied challenge: claimed reliance on the earlier Fourth Department decision

MCLP’s more nuanced argument is an as-applied challenge. It contends that:

• this Court’s 2022 decision in MTGLQ Invs., LP v. Zaveri previously held the 2019 action timely under CPLR 205(a);
• MCLP (and its predecessors) relied on that determination; and
• retroactively applying CPLR 205-a now to dismiss the action undermines a settled reliance interest and thereby violates due process.

The court rejects this argument, using the Regina Metro. / American Economy / Landgraf framework: the key question is whether FAPA “attaches new legal consequences to events completed before its enactment,” such that it impairs rights MCLP possessed when it acted, increases liability, or imposes new duties.

a. Identifying the relevant “conduct” or “transactions”

A central analytical move in the opinion is to define what counts as the “conduct” or “transactions” that might give rise to a vested reliance interest. The court emphasizes that:

“the bottom-line holding in our prior decision is not the correct event to analyze in considering whether MCLP has a vested reliance interest protected by the due process clause.”

Instead, the only past “acts,” “conduct,” or “transactions” that could give rise to such an interest are:

“the right of MCLP's predecessor in interest to take action to avoid dismissal of the 2012 action for neglect to prosecute (see CPLR 205-a, 3404).”

In other words, the focus must be on:

• the conduct that led to dismissal of the 2012 action (i.e., neglect and delay); and
• whether FAPA retroactively renders that conduct improper or attaches new substantive consequences to it.

b. No new legal consequences for conduct that was always dilatory

The court reasons that FAPA’s enactment would create an impermissible retroactive effect “only if its application would render improper conduct that was indisputably proper at the time the predecessor in interest acted,” such as if conduct that was not previously considered dilatory suddenly became so.

But here:

• There is “no dispute” that the 2012 action was properly dismissed due to dilatory conduct both before and after FAPA.
• At all relevant times, the plaintiff had the ability and the obligation to prosecute its action diligently to avoid dismissal under CPLR 3404.

FAPA did not retroactively convert proper conduct into improper conduct; it simply altered the legal consequence of a neglect-based dismissal for purposes of accessing a savings statute. Thus, the statute did not impair a substantive right that MCLP or its predecessors possessed when they acted.

c. No protected reliance interest in using a savings statute to cure one’s own neglect

The court distills its conclusion in a formulation that is likely to be quoted in future cases:

“MCLP does not have a protected reliance interest in its predecessor's dilatory conduct—i.e., MCLP had no due process right to utilize the savings provision to subsequently resuscitate an action that its predecessor in interest neglectfully prosecuted.”

This is the core new articulation in the case: a party cannot claim a constitutionally protected reliance interest in being able to cure its own (or its predecessor’s) neglect through a savings statute. That is not a vested substantive right; it is at most a procedural advantage subject to legislative revision—even retroactively—so long as the underlying conduct was always subject to the same standards of diligence.

Accordingly, the court holds that retroactive application of CPLR 205-a to this foreclosure action does not “impair rights a party possessed when [the party] acted” (Regina Metro., 35 NY3d at 365) and thus does not violate substantive due process.

The court also notes that MCLP advanced additional constitutional grounds only in its reply brief; those arguments are deemed unpreserved and not properly before the court (Aubertine v. Aubertine, 240 AD3d 1360; Consumers Beverages, Inc. v. Kavcon Dev. LLC, 227 AD3d 1381; Edwards v. Edwards, 199 AD3d 1460).

IV. Precedents Cited and Their Influence

A. Statutory Interpretation and Retroactivity Cases

• Dorfman v. Leidner, 76 NY2d 956 (1990)
  Reiterates the presumption that statutes operate prospectively unless the Legislature clearly indicates otherwise. The court uses Dorfman as the baseline rule, then shows how FAPA falls within the recognized exceptions.
• Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577 (1998)
  Emphasizes that retroactivity is “not favored” unless mandated by express or necessary implication, but also that legislation clarifying the meaning of existing law can be applied retroactively. The court invokes Majewski’s notion of statutes that “clarify what the law was always meant to say and do” to characterize FAPA.
• Matter of Gleason (Michael Vee, Ltd.), 96 NY2d 117 (2001)
  Holds that remedial legislation should be given retroactive effect to fulfill its beneficial purpose. The court uses Gleason’s framework for determining retroactivity—legislative urgency, correction of unintended judicial interpretations, reaffirmation of prior legislative judgments—to interpret FAPA.
• Brothers v. Florence, 95 NY2d 290 (2000)
  Provides guidance on how “take effect immediately” language and legislative purpose factor into retroactivity analysis. The court cites Brothers to support its reading of FAPA’s effective-date clause as reflecting urgency.
• Gottwald v. Sebert, 40 NY3d 240 (2023)
  Cited for contemporary articulation of retroactivity principles and the disfavor of retroactive construction absent clear legislative direction. The court uses it to frame the general presumption against retroactivity before turning to FAPA’s specific text and history.

B. FAPA-Specific Appellate Division Decisions

• Genovese v. Nationstar Mtge. LLC, 223 AD3d 37 (1st Dept 2023)
  Found that FAPA was intended to apply retroactively, relying on similar textual and legislative-history cues. The Fourth Department adopts Genovese’s reasoning and cites it to reinforce that applying FAPA to pending cases was part of the legislative design.
• FV-1, Inc. v. Palaguachi, 234 AD3d 818 (2d Dept 2025)
  Held that retroactive application of FAPA’s provisions is constitutionally valid, concluding that such application serves a legitimate legislative purpose and is rationally related to that purpose. The Fourth Department explicitly echoes this holding in summarily rejecting MCLP’s due process challenge.
• Bank of N.Y. Mellon v. Richards, 233 AD3d 1250 (3d Dept 2024)
  Another case upholding FAPA’s retroactive application in foreclosure settings; cited as part of the multi-department consensus.
• Deutsche Bank Natl. Trust Co. v. Vista Holding, LLC, 239 AD3d 830 (2d Dept 2025)
  Interprets CPLR 205-a and underscores the significance of FAPA’s omission of the CPLR 205(a) requirement that the court specify a pattern of delay before a neglect-based dismissal bars use of the savings statute. The Fourth Department uses Vista Holding to support its conclusion that FAPA meant to correct prior “erroneous judicial interpretations.”
• Collins v. Bank of N.Y. Mellon, 227 AD3d 948 (2d Dept 2024)
  Another Second Department decision reading CPLR 205-a and FAPA as retroactive remedial measures. Cited to demonstrate the uniformity of appellate authority on FAPA’s retroactivity as of this decision.
• Bank of N.Y. Mellon v. Del Rio, 233 AD3d 529 (1st Dept 2024) and Deutsche Bank Natl. Trust Co. v. Dagrin, 233 AD3d 1065 (2d Dept 2024)
  These cases rejected due process challenges to FAPA’s retroactive application in foreclosure contexts, which the Fourth Department follows in rejecting MCLP’s constitutional arguments.

C. Constitutional and Retroactivity Framework Cases

• Cohen v. Cuomo, 19 NY3d 196 (2012)
  Articulates the “strong presumption of constitutionality” for legislative enactments, and the “beyond a reasonable doubt” standard for invalidating statutes on constitutional grounds.
• American Economy Ins. Co. v. State of New York, 30 NY3d 136 (2017)
  Sets out the rational-basis test for retroactive civil legislation and focuses on whether retroactivity is justified by a rational legislative purpose. The court uses American Economy’s language and its reliance on Pension Benefit Guar. Corp. v. R.A. Gray & Co. to frame the due process inquiry.
• Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 US 717 (1984)
  A US Supreme Court case providing the federal due process standard for retroactive civil legislation, quoted for the “rational legislative purpose” test.
• Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 NY3d 332 (2020)
  Provides an extensive discussion of retroactivity, vested rights, and due process in the context of rent regulation (HSTPA). The court borrows Regina Metro.’s language about when retroactive application impermissibly “impairs rights a party possessed when it acted” or imposes “new duties with respect to transactions already completed.”
• Landgraf v. USI Film Prods., 511 US 244 (1994)
  The leading US Supreme Court decision on retroactivity, which distinguishes between statutes that change substantive rights and those that alter procedural or remedial rules. The Fourth Department applies Landgraf’s key question—whether a statute “attaches new legal consequences to events completed before its enactment”—to conclude FAPA’s effect here is permissible.
• Ruth v. Elderwood at Amherst, 209 AD3d 1281 (4th Dept 2022)
  Cited for the principle that retroactive legislation is problematic only when it renders improper conduct that was indisputably proper when undertaken. The court uses Ruth as support for its conclusion that FAPA did not transform previously acceptable conduct into wrongful conduct.

D. Procedural and Ancillary Cases

• Matter of Rochester Police Dept. v. Duval, 232 AD3d 1247 (4th Dept 2024)
  Addressed notice to the Attorney General in constitutional challenges. The court distinguishes it to confirm that MCLP properly preserved its due process challenge by giving such notice.
• Aubertine v. Aubertine, 240 AD3d 1360 (4th Dept 2025); Consumers Beverages, Inc. v. Kavcon Dev. LLC, 227 AD3d 1381 (4th Dept 2024); Edwards v. Edwards, 199 AD3d 1460 (4th Dept 2021)
  Stand for the principle that arguments raised for the first time in a reply brief are not properly before the court.
• MTGLQ Invs., LP v. Zaveri, 210 AD3d 1387 (4th Dept 2022)
  The earlier appeal in this very litigation, where the court applied CPLR 205(a) to hold the 2019 action timely. That decision’s reasoning is partially superseded by FAPA as applied here, but it remains critical context for understanding MCLP’s reliance argument.

V. Complex Concepts Simplified

1. “Savings statute” – CPLR 205(a) and 205-a

A “savings statute” is a law that gives a plaintiff a short additional window to refile a lawsuit after a prior, timely filed action has been dismissed for certain non-merits reasons. It “saves” the claim from being lost due to technical or procedural terminations.

CPLR 205(a) is New York’s general savings statute, applying broadly to most civil cases. Before FAPA, it allowed a new action to be filed within six months after termination of a prior timely action, provided the termination was not, among other things, for neglect to prosecute supported by a record finding of a pattern of delay.

CPLR 205-a is a newer, foreclosure-specific savings statute. It applies only to actions involving instruments governed by CPLR 213(4), such as mortgage foreclosures. It is narrower than CPLR 205(a) in two critical ways:

• It denies the six-month extension whenever the prior action was dismissed for “any form of neglect,” including dismissals under CPLR 3404.
• It restricts the benefit for successors/assignees unless they plead and prove that they are acting on behalf of the original plaintiff.

2. CPLR 3404 – “Abandonment” of an action

CPLR 3404 deals with cases that have been marked off the trial calendar. If a case is marked off and the plaintiff fails to restore it within one year, the statute deems the case “abandoned” and dismissed. This is treated as a form of “neglect to prosecute,” because the plaintiff did not take the necessary steps to move the case forward.

In MCLP Asset, the 2012 foreclosure was dismissed this way: it was pre-marked off the calendar in 2016 and, after a year of inaction, was deemed abandoned and dismissed in 2017. Under CPLR 205-a, that kind of dismissal is specifically classified as a neglect-based dismissal, making the savings statute unavailable.

3. “Retroactivity” of statutes

A statute is “retroactive” if it applies to events or cases that occurred before its enactment—e.g., to lawsuits already filed or conduct already completed. Courts are cautious about retroactive application because it can upset expectations and reliance interests.

However, legislatures are allowed to enact retroactive civil legislation if:

• they clearly express an intention for retroactivity, and
• retroactive application is rationally related to a legitimate governmental purpose and does not unfairly impair vested substantive rights.

FAPA is retroactive because it was expressly made applicable to pending foreclosure cases where final judgments had not been enforced. The court finds that this is permissible due to FAPA’s remedial, clarificatory purpose and because it does not retroactively make lawful conduct unlawful, but rather changes the procedural consequences of a prior neglect-based dismissal.

4. “Neglect to prosecute”

“Neglect to prosecute” generally means failing to move a case forward with reasonable diligence. Examples include:

• letting a case sit inactive for long periods;
• failing to comply with scheduling orders; or
• not restoring a case that has been marked off the calendar.

Under former practice, whether a dismissal counted as “neglect to prosecute” for purposes of the savings statute could sometimes turn on whether the trial court had made specific on‑the‑record findings about the plaintiff’s pattern of delay. FAPA and CPLR 205-a were designed to reduce this formalism: if the dismissal is, in substance, for neglect (such as abandonment under CPLR 3404), the savings statute is barred, even if the order lacks detailed findings.

5. “Searching the record” under CPLR 3212(b)

When a party moves for summary judgment, CPLR 3212(b) allows the court not only to grant or deny the motion, but also to “search the record” and grant summary judgment to a nonmoving party if the undisputed facts show that the nonmovant is entitled to judgment as a matter of law.

In this case, although MCLP moved for summary judgment, the court determined that, under FAPA and CPLR 205-a, Zaveri was entitled to dismissal on statute of limitations grounds. The court therefore used its authority under CPLR 3212(b) to grant summary judgment to the defendant, even though she had not made her own separate summary judgment motion at that stage.

6. “Vested rights” and “reliance interests” under due process

Due process protects “vested” rights—those that have become so firmly established that the government cannot retroactively take them away without adequate justification. In retroactivity cases, courts ask whether the party:

• engaged in conduct or entered into transactions under one legal regime; and
• would suffer unfairly if a new law later changes the legal consequences of that past conduct.

Not all expectations qualify. A plaintiff does not have a vested right in a particular procedural rule or in the continuation of a favorable judicial interpretation of a statute. In MCLP Asset, the court holds that there is no vested right to use a savings statute to cure one’s own negligent prosecution of a case, even if earlier case law temporarily seemed to allow that practice. Therefore, retroactively narrowing or eliminating that procedural benefit does not violate due process.

VI. Impact and Significance

A. Practical Consequences for Foreclosure Litigation

This decision has several concrete implications for foreclosure practice in New York:

• Uniform retroactivity of FAPA statewide.
  With the Fourth Department aligning itself with the First, Second, and Third Departments, there is now a uniform Appellate Division consensus that FAPA—and specifically CPLR 205-a—applies retroactively to pending foreclosure actions where a final judgment has not been enforced.
• Strict limits on refiling after neglect-based dismissals.
  If a foreclosure is dismissed under CPLR 3404 (or any other neglect-based ground), the lender cannot invoke CPLR 205-a’s six-month extension. The era of repeatedly refiling foreclosures after long periods of inactivity, relying on generous constructions of CPLR 205(a), is effectively over.
• Heightened risk for assignees and successors in interest.
  Assignees who acquire defaulted mortgages must now be especially wary. They can only use CPLR 205-a if they:
  • are acting “on behalf of” the original plaintiff, and
  • expressly plead and prove that relationship.
  Where an earlier action was dismissed for neglect, an assignee will have no statutory safety net at all.
• Importance of diligent prosecution of the first action.
  The decision reinforces that the first foreclosure action is critical. Lenders must prosecute it diligently and avoid neglect-based dismissals. If that first action is lost due to neglect, the ability to refile is sharply curtailed, and in many cases, the claim will be irretrievably time-barred.
• Borrower leverage and finality.
  Borrowers and their counsel gain increased leverage where there has been prior litigation mismanagement. They may successfully assert statute-of-limitations defenses to later actions, particularly in cases with a history of abandonment, failure to restore, or other neglect by prior servicers or counsel.

B. Doctrinal Significance: No Reliance Interest in Neglect

The most doctrinally significant aspect of the opinion is its clear statement that a plaintiff has no constitutionally protected reliance interest in the ability to use a savings statute to remedy its own or its predecessor’s neglect to prosecute. The court frames this as follows:

“MCLP does not have a protected reliance interest in its predecessor's dilatory conduct—i.e., MCLP had no due process right to utilize the savings provision to subsequently resuscitate an action that its predecessor in interest neglectfully prosecuted.”

This principle may influence future cases beyond foreclosure, particularly those involving:

• legislative amendments that tighten procedural rules retroactively;
• arguments that a prior favorable appellate decision created a vested reliance interest; and
• debates over whether particular procedural changes are merely remedial or affect substantive rights.

C. Potential Areas of Future Litigation

While MCLP Asset resolves key questions, it also highlights potential areas for future disputes:

• Scope of “any form of neglect.”
  FAPA and CPLR 205-a speak broadly of “any form of neglect,” including but not limited to CPLR 3404. Future cases may test the boundaries of what counts as “neglect” in other dismissal contexts (e.g., failure to comply with court orders, failure to appear at conferences, etc.).
• Meaning of “acting on behalf of the original plaintiff.”
  Courts will likely need to clarify what factual showing suffices to establish that a successor or assignee is acting “on behalf of” the original plaintiff for CPLR 205-a purposes—an issue only touched on here because MCLP conceded that it had not made any such showing.
• Interaction with other FAPA provisions.
  FAPA also amended other statutes (e.g., regarding acceleration/deceleration, partial payments, stipulations). While not directly at issue in this opinion, similar retroactivity and due process questions may arise concerning those provisions.

VII. Conclusion

MCLP Asset Co., Inc. v. Zaveri is a pivotal decision in New York foreclosure jurisprudence. It cements, in the Fourth Department, the view that FAPA—and especially the foreclosure-specific savings statute, CPLR 205-a—applies retroactively to pending cases. It also confirms that CPLR 205-a is meaningfully narrower than CPLR 205(a): a foreclosure plaintiff cannot invoke it after a neglect-based dismissal (including CPLR 3404 abandonment) and cannot rely on it as a successor or assignee without pleading and proving that it is acting on behalf of the original plaintiff.

Most importantly, the court’s due process analysis articulates a clear and influential principle: there is no constitutionally protected reliance interest in being able to use a savings statute to revive an action that was dismissed due to the plaintiff’s own neglect. The legal environment may have temporarily allowed such maneuvers under pre-FAPA interpretations of CPLR 205(a), but the Legislature was free to correct that course and apply its correction retroactively, so long as the underlying duty of diligence remained unchanged.

For lenders, servicers, and their counsel, the message is unmistakable: prosecute foreclosure actions diligently from the outset; do not assume that procedural safety nets will remain in place indefinitely; and recognize that neglect-based dismissals may now be fatal. For borrowers, the decision strengthens statute-of-limitations defenses and promotes greater finality in cases where lenders have allowed actions to languish.

In the broader legal context, MCLP Asset reinforces the power of clarificatory, remedial legislation to reshape procedural landscapes retroactively, while carefully delineating the limits of due process protection for reliance on prior, more forgiving rules.