Upon the following papers numbered 1 to 11 read on this motion for summary judgment, striking the answer, dismissing the affirmative defenses and counterclaims and appointing a referee to compute, and cross motion to dismiss; Notice of Motion/Order to Show Cause and supporting papers 1-5; Notice of Cross Motion and supporting papers 6-8; Opposing papers 9-10; Reply papers 11; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that this motion (#001) by the plaintiff for, among other things, summary judgment, amendment of the caption and the appointment of a referee to compute, is granted in its entirety, and it is further

ORDERED that the cross motion (#002) by the defendants, Fred S. Kantrow and Marlene Kantrow, for dismissal of the plaintiff's complaint pursuant to CPLR 3211(a)(1) and (a)(5) is considered thereunder, and is denied in its entirety, and it is further

ORDERED that the proposed Order submitted by plaintiff, as modified by the court, is signed simultaneously herewith, and it is further

ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(3).

This foreclosure action was commenced by filing on April 11, 2015. The matter was reassigned to this Part pursuant to Administrative Order No. 97-17, dated August 8, 2017 and submitted for decision on August 10, 2017. In essence, on October 9, 2006, defendants, Fred S. Kantrow and Marlene Kantrow, borrowed $697,000.00 from the plaintiff's predecessor-in-interest and executed a promissory note and mortgage securing the real property located at 45 Independence Way, Miller Place, NY (the "Property"). Since October of 2007, the defendants failed to pay the monthly installments due and owing. A foreclosure action was commenced by filing on November 13, 2007 (Suffolk County Index Number 35301/2007) and, on March 3, 2008, defendants filed a Chapter 13 bankruptcy petition. Under the terms of the Second Amended Chapter 13 Plan dated September 4, 2008, defendants surrendered their interest in the Property in full satisfaction of plaintiff's secured claim. An Order Confirming the Plan was [*2]signed on October 20, 2008. Plaintiff moved for an Order granting relief from the bankruptcy stay, and the motion was granted without opposition on February 23, 2008.

Plaintiff moved for the appointment of a referee in the foreclosure action on two occasions in the action bearing Index No. 35301/07. The first motion (#001) was submitted unopposed on February 5, 2008, and was denied by Order dated October 3, 2008 with leave to resubmit with evidentiary proof in connection with 2008 NY Laws Chapter 472 (enacted August 1, 2008). The second motion (#002) for the appointment of a referee and a third motion (#003) for an amendment of the pleadings were submitted on July 7, 2009. Several foreclosure settlement conferences took place between March 17, 2010 and September 15, 2010. The motions (#002, #003) were thereafter denied by Order dated February 18, 2011 with leave to resubmit with an affidavit in compliance with the October 20, 2010 Administrative Order of the Chief Administrative Judge.

The bankruptcy case was completed on January 17, 2013. On July 15, 2013, plaintiff filed a motion (#004) in the action bearing Index No. 35301/07 seeking to discontinue that action without prejudice, with a return date of August 7, 2013. The attorney's affirmation attached to the motion noted that discontinuance was being sought "in the best interest of all parties and in the interest of judicial economy." On July 24, 2013, shortly after the motion (#004) was filed and before the return date, a sua sponte Order was issued purporting to dismiss the complaint without prejudice, though the Order was not clear in the reason for dismissal and notes that "plaintiff has discontinued or wishes to discontinue its action."

On April 11, 2015, plaintiff commenced this instant action bearing Index No. 603779/15 and defendants answered the complaint, alleging eleven Affirmative Defenses and four Counterclaims. By the instant motion in the present action (#001), plaintiff seeks an order granting summary judgment, striking the answer, dismissing the affirmative defenses and counterclaims, and appointing a referee to compute. The defendants have filed a cross motion (#002) for dismissal.

Entitlement to summary judgment in favor of a foreclosing plaintiff is established, prima facie, by the plaintiff's production of the mortgage and the unpaid note, and evidence of the default in payment (see Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176, 9 NYS2d 312 [2d Dept 2015]; Wells Fargo Bank, N.A. v DeSouza, 126 AD3d 965, 3 NYS2d 619 [2d Dept 2015]; OneWest Bank, FSB v DiPilato, 124 AD3d 735, 998 NYS2d 668 [2d Dept 2015]; Wells Fargo Bank, N.A. v Ali, 122 AD3d 726, 995 NYS2d 735 [2d Dept 2014]).

In the moving papers on the instant motion, plaintiff addresses its burden of proof on this summary judgment motion and refutes the affirmative defenses and counterclaims of the answer. Therefore, plaintiff has satisfied its prima facie burden on this summary judgment motion (see HSBC Bank USA, Natl. Assn. v Espinal, 137 AD3d 1079, 28 NYS3d 107 [2d Dept 2016]; U.S. Bank Natl. Assn. v Cox, 148 AD3d 962, 49 NYS3d 527 [2d Dept 2017]).

It was thus incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of the affirmative defenses and counterclaims asserted in the answer or otherwise available to defendants (see Flagstar Bank v Bellafiore, 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012]; Grogg Assocs. v South Rd. Assocs., 74 AD3d 1021, 907 NYS2d 22 [2d Dept 2010]; Wells Fargo Bank v Karla, 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]; Washington Mut. Bank v O'Connor, 63 AD3d 832,880 NYS2d 696 [2d Dept 2009]; J.P. Morgan Chase Bank, NA v Agnello, 62 AD3d 662, 878 NYS2d 397 [2d Dept 2009]; Aames Funding Corp. v Houston, 44 AD3d 692, 843 NYS2d 660 [2d Dept 2007]).

Notably, affirmative defenses and counterclaims predicated upon legal conclusions that are not substantiated with allegations of fact are subject to dismissal (see CPLR 3013, 3018[b]; Katz v Miller, 120 AD3d 768, 991 NYS2d 346 [2d Dept 2014]; Becher v Feller, 64 AD3 672, 677, 884 NYS2d 83 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 AD3d 619, 858 NYS2d 260 [2d Dept 2008]). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539, 369 NYS2d 667 [1975]; see also Madeline D'Anthony Enter., Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). In addition, the failure to raise pleaded affirmative defenses or counterclaims in opposition to a motion for summary judgment renders those defenses abandoned and thus without any efficacy (see New York Commercial Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756, 969 NYS2d 796 [2d Dept 2013]; Starkman v City of Long Beach, 106 AD3d 1076, 965 NYS2d 609 [2d Dept 2013]).

Defendants' cross motion (#002) and opposition to plaintiff's motion allege only one claim, that is, whether this action is within the applicable statute of limitations (Eleventh Affirmative Defense). The Court, therefore, dismisses the First through Tenth Affirmative Defenses in defendants' answer as abandoned.

The Court denies the cross motion (#002) and rejects the Eleventh Affirmative Defense. In short, upon the issuance of the Order confirming the Plan, the defendants surrendered the Property to plaintiff entitling plaintiff to the ability to exercise its rights to obtain title to the Property. Defendants are, therefore, estopped from challenging plaintiff's foreclosure action. Additionally, the prior acceleration of the loan was revoked by plaintiff's affirmative act of seeking to voluntarily discontinue the prior foreclosure action.

"The doctrine of judicial estoppel or estoppel against inconsistent positions precludes a party from taking a position in one legal proceeding which is contrary to that which he or she took in a prior proceeding, simply because his or her interests have changed" (Davis v Citibank, N.A., 116 AD3d 819, 820—21, 984 NYS2d 388, 390—91 [2d Dept 2014] [citations omitted]). This [*3]doctrine "protect[s] judicial integrity by avoiding the risk of inconsistent results in two proceedings" (id., citing Bates v Long Is. R.R. Co., 997 F.2d 1028, 1038 [2d Cir.]). Estoppel against inconsistent positions applies where a party to an action has secured a favorable judgment "by adopting a certain position and then has sought to assume a contrary position in another action simply because his interests have changed" (Kimco of New York, Inc. v Devon, 163 AD2d 573, 574—75, 558 NYS2d 630, 632 [2d Dept 1990], citing Anonymous v Anonymous, 137 AD2d 739, 741, 524 NYS2d 823 [2d Dept 1988]; see also, Davis v Wakelee, 156 U.S. 680, 689, 15 S.Ct. 555, 558, 39 L.Ed. 578 [1895]; Neumann v Metropolitan Med. Group, 153 AD2d 888, 889, 545 NYS2d 592 [2d Dept 1989]; Knight v Knight, 31 AD2d 267, 271, 296 NYS2d 1007 [2d Dept 1969]).

The doctrine of estoppel against inconsistent positions applies here. The defendants voluntarily agreed to surrender the Property to plaintiff as part of their confirmed Second Amended Chapter 13 Plan. By "surrendering" the property, the defendants, by definition, agreed to relinquish all rights, including the right to possess the collateral, and have agreed to "make the collateral available so the secured creditor can ... exercise its state law rights in the collateral" (HSBC Bank USA, N.A. v Zair, 550 BR 188, 192—93 [EDNY 2016], appeal dismissed [2d Cir. 16-1648, Nov 15, 2016] [internal citations omitted]; Wiggins v Hudson City Sav. Bank, 2015 WL 4638452, at *3, 2015 Bankr. LEXIS 2606, at *9 [Bankr D NJ Aug. 4, 2015]). Plaintiff, through this foreclosure action, seeks now to enforce its rights to the Property. By contesting the foreclosure action, however, defendants are acting in contravention to the position they took in their bankruptcy case where their intentions were to give up their rights in the Property to the plaintiff. Because defendants secured the bankruptcy Plan by adopting one position and now take a contrary position by contesting the action and moving for dismissal, the doctrine of estoppel against inconsistent positions bars defendants from raising any issue with regards to the secured lien and from contesting the foreclosure action (see, Kimco of New York, Inc. v Devon, 163 AD2d 573, 574—75, 558 NYS2d 630, 632 [2d Dept 1990] [citations omitted]).

The Court of Appeals recently relied upon the doctrine of judicial estoppel in an opinion by the late Honorable Sheila Abdus-Salaam, Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1, 28-29, 39 NYS3d 89 (2016), which affirmed the detailed discussion of the issue by the Second Department's determination (123 AD3d 1023, 1026, 999 NYS2d 504 [2d Dept 2014]). Here, judicial estoppel is equally determinative.

The doctrine of res judicata also bars defendants from contesting the foreclosure action. An order confirming a Chapter 13 bankruptcy plan constitutes a final judgment on the merits, "with preclusive effect under res judicata" (In re Layo, 460 F.3d 289, 293—94 [2d Cir. 2006] citing Stoll v Gottlieb, 305 US 165, 170-71, 59 S Ct 134, 83 L Ed 104 [1938]; Sure-Snap Corp. v State St. Bank and Trust Co., 948 F.2d 869 [2d Cir.1991]). Res judicata is a conclusive adjudication of all questions at issue between the parties and all matters of defense which were raised or could have been raised by any of the defendants (see Richter v Sportsman Prop., Inc., 82 AD3d 733, 918 NYS 511 [2d Dept 2011]; 83-17 Broadway Corp. v Debcon Fin. Serv., Inc., 39 AD3d 583, 835 NYS 602 [2d Dept 2007]; Rosendale v Citibank, 262 AD2d 628, 691 NYS [*4]901 [2d Dept 1999]). Thus, an order confirming a Chapter 13 plan, upon becoming final, "represents a binding determination of the rights and liabilities of the parties as ordained by the plan. Absent a timely appeal, the confirmed plan is res judicata and its terms are not subject to collateral attack" (In re Layo,460 F.3d 289, at 294).

The terms of the Order Confirming the Plan are binding on defendants and defendants are barred from challenging plaintiff's secured lien under res judicata. Defendants acknowledged plaintiff's secured lien and interest in the Property in the terms of the Plan, and completed the Plan by making all payments. At no point did defendants question the validity of the lien, or challenge plaintiff's secured claim. Thus, defendants are bound to the Order Confirming the Plan and cannot now assert any challenges to plaintiff's secured lien.

Notwithstanding the above, while defendants claim that the debt was accelerated with the commencement of the first action (Index No. 35301/07) on November 13, 2007, the Court finds that plaintiff's distinct intention to discontinue that action was an affirmative act of revocation which decelerated the loan upon issuance of the sua sponte Order dated July 24, 2013. Accordingly, for this additional reason, the Court rejects defendants' claim regarding the statute of limitations.

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]; NMNT Realty Corp. v Knoxville 2012 Tr., 151 AD3d 1068, 1069, 58 NYS3d 118, 120 [2d Dept 2017] [citations omitted]). "[O]nce a mortgage debt is accelerated, the entire amount is due, and the Statute of Limitations begins to run on the entire debt. ... A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action" (id., 1069-1070, [citations omitted]).

Plaintiff actively sought to voluntarily discontinue the prior action, which serves as a revocation of the prior acceleration. "Although a court dismissal of a prior action for failure to prosecute, failure to appear at a conference or lack of personal jurisdiction or the acceptance of additional payments after acceleration do not constitute an act of revocation (see e.g. Clayton Natl., Inc. v Guldi, 307 AD2d 982, 763 NYS 493 [2d Dept 2003]; Federal Natl. Mtge. Ass'n v Mebane, 208 AD2d 892, 618 NYS2d 88 [2d Dept 1994]), here, plaintiff voluntarily sought to discontinue the action before the six year statute of limitations expired. Although the July 24, 2013 sua sponte Order was issued purporting to dismiss the complaint without prejudice, the sua sponte Order was unclear in the reason for dismissal and notes that "plaintiff has discontinued or wishes to discontinue its action."^[FN1] This Court finds that the plaintiff's intention of [*5]discontinuing the prior action, coupled with the resulting sua sponte Order, was an affirmative act of revocation (see U.S. Bank Nat. Ass'n v Wongsonadi, 55 Misc 3d 1207[A], 55 NYS3d 695 [Sup Ct Queens County 2017]; U.S. Bank Natl. Ass'n v Deochand, 2017 WL 1031942, 2017 NY Slip Op 30472(U) [Sup Ct Queens County 2017]; Assyag v Wells Fargo Bank, N.A., 2016 WL 6138269 [Sup Ct Queens County, September 29, 2016, No. 707845-2015]; 4 Cosgrove 950 Corp. v Deutsche Bank Natl. Trust Co., 2016 WL 2839341 [Sup Ct New York County, May 11, 2016, No. 152225/2015]).

Plaintiff's clear intention to discontinue the prior action cannot be erased by the premature issuance of the sua sponte Order (see generally, Wilmington Sav. Fund Soc., FSB v DeCanio, 55 Misc 3d 1215[A], 57 NYS3d 677 [Sup Ct Suffolk County 2017]). Thus, the statute of limitations has not run, and plaintiff's action is timely.

Therefore, the Court grants plaintiff's motion (#001) in its entirety, denies the defendants cross motion (#002), and simultaneously signs the proposed Order, as modified.