ORDERED that the order is affirmed insofar as appealed from, with costs. In 2006, the defendant Fernando Ford (hereinafter the defendant), executed a mortgage on certain real property located in Brooklyn, securing a note in the amount of $476,000. In 2007, U.S. Bank, National Association, as trustee for the MLMI Surf Trust Series 2006-BC5 (hereinafter U.S. Bank MLMI), commenced an action against the defendant, among others, to foreclose the mortgage, in which U.S. Bank MLMI elected to call due the entire amount secured by the mortgage (hereinafter the 2007 action). The 2007 action was voluntarily discontinued in April 2008. In 2008, U.S. Bank MLMI commenced a second foreclosure action (hereinafter the 2008 action) and elected to call due the entire amount secured by the mortgage. The 2008 action was voluntarily discontinued in June 2013. In 2017, the plaintiff commenced this mortgage foreclosure action against the defendant, among others. The defendant interposed an answer, in which he asserted various affirmative defenses, including the expiration of the statute of limitations. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, and the defendant cross-moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred. By order dated March 14, 2019 (hereinafter the March 2019 order), the Supreme Court granted the defendant's cross-motion and denied the plaintiff's motion, in effect, as academic. On appeal by the plaintiff, this Court, in a decision and order dated September 14, 2022, among other things, reversed the March 2019 order, determining that the voluntary discontinuances of the 2007 action and the 2008 action constituted affirmative acts of revocation of the acceleration of the debt within the six-year limitations period and, thus, that the defendant had failed to establish that this action was untimely, and remitted the matter to the Supreme Court for a determination of the plaintiff's motion on the merits (see U.S. Bank N.A. v Ford, 208 AD3d 1199, 1201). Following the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022]), the defendant cross-moved, inter alia, for leave to renew his prior cross-motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred. In support, the defendant argued that FAPA constituted a change in the law that would alter the prior determination and that the voluntary discontinuances of the 2007 action and the 2008 action failed to revive or reset the statute of limitations (see id. § 203[h]). In an order dated May 23, 2023, the Supreme Court, among other things, granted that branch of the defendant's motion which was for leave to renew, and upon renewal, granted the defendant's prior cross-motion. The plaintiff appeals.
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A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law (see U.S. Bank Trust, N.A. v Miele, 243 AD3d 718, 719; Opalinski v City of New York, 205 AD3d 917, 919). "A motion for leave to renew pursuant to CPLR 2221(e)(2) based upon a change in the law that would change the prior determination must be made, absent circumstances set forth in CPLR 5015, before the time to appeal the final judgment has expired" (Ditech Fin., LLC v Naidu, 244 AD3d 1067, 1068 [alteration and internal quotation marks omitted]; see Wilmington Sav. Fund Socy., FSB v Sposato, 244 AD3d 790, 792). Contrary to the plaintiff's contention, as a judgment of foreclosure and sale had not yet been entered in this action, that branch of the defendant's motion which was for leave to renew was not untimely (see Ditech Fin., LLC v Naidu, 244 AD3d at 1069). An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4]). Even if the mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt (see Citimortgage, Inc. v Gunn, 234 AD3d 922, 923; Pryce v U.S. Bank, N.A.,
226 AD3d 711, 712). The entire mortgage debt will be deemed to have been accelerated, as relevant here, by the commencement of a mortgage foreclosure action in which the complaint seeks payment of the full outstanding loan balance (see Deutsche Bank Natl. Trust Co. v Mayer, 244 AD3d 686, 688; U.S. Bank N.A. v Connor, 204 AD3d 861,
863). CPLR 203(h), as amended by FAPA (L 2022, ch 821, § 4), provides that "[o]nce a cause of action upon an instrument described in [CPLR 213(4)] has accrued, no party may, in form or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim, unless expressly prescribed by statute."
Moreover, as relevant to this appeal, FAPA amended CPLR 3217(e) to provide that "[i]n any action on an instrument described under [CPLR 213(4)], the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute" (see L 2022, ch 821, § 8; see also
97 Lyman Ave., LLC v MTGLQ Invs., L.P., 233 AD3d 1038, 1041). Here, it is undisputed that U.S. Bank MLMI elected to call due the entire balance of the mortgage debt in the complaint in the 2007 action, the instant action was commenced more than six years later, and the voluntary discontinuances of the 2007 action and the 2008 action did not serve to reset or revive the statute of limitations (see CPLR 203[h]; 3217[e]; FV-1, Inc. v Palaguachi, 234 AD3d 818, 821). The plaintiff contends that the defendant's motion, inter alia, for leave to renew was procedurally improper, as the Supreme Court was without authority to vacate or modify the decision and order of this Court dated September 14, 2022. The plaintiff's contention is without merit.
An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court (see US Bank, N.A. v Kandra, 244 AD3d 902, 904; New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 205 AD3d 727, 727). The doctrine of the law of the case operates to foreclose reexamination of the issue absent a showing of new factual circumstances, additional relevant evidence, or a change in the law that would warrant reconsideration of the issue (see U.S. Bank Trust, N.A. v Miele, 243 AD3d at 720; Frankson v Brown & Williamson Tobacco Corp., 67 AD3d 213, 218).
Here, on the prior appeal, while this Court determined that the defendant had failed to establish that the action was barred by the six-year statute of limitations, the defendant [*2]demonstrated a subsequent change in the law that would warrant reconsideration of the issue of whether the action was untimely (see U.S. Bank Trust, N.A. v Miele, 243 AD3d at 720). Consequently, that branch of the defendant's motion which was for leave to renew, based on a change in the law, was not improper and was properly considered by the Supreme Court.
The plaintiff's contentions challenging FAPA's retroactive application and constitutionality are without merit (see Van Dyke v U.S. Bank, N.A., 45 NY3d 461; Article 13 LLC v Ponce De Leon Fed. Bank, 45 NY3d 441; Citimortgage, Inc. v Gunn, 234 AD3d at 924; FV-1, Inc. v Palaguachi, 234 AD3d at 822; Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d
1065, 1067).
Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for leave to renew his prior cross-motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time- barred and upon renewal, granted the defendant's prior cross-motion.
CONNOLLY, J.P., BRATHWAITE NELSON, WARHIT and MCCORMACK, JJ., concur.
ENTER:
Darrell M. Joseph Clerk of the Court
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