Supreme Court, Westchester County, January 29, 2018

Leopold & Associates, PLLC, Armonk, for plaintiff.

Paul W. Siegert, New York City, for Thomas Lee, defendant.

This residential foreclosure action was commenced on January 23, 2009. On November 23, 2009, plaintiff, then represented by Rosicki, Rosicki & Associates, P.C. (Rosicki), moved the court for a default judgment and appointment of a referee to compute (mot sequence 1 [exhibit G]), which was denied by the court (Bellantoni, J.)^[FN1] on January 4, 2011.^[FN2] On September 19, 2013, pursuant to consent to change attorney, plaintiff's current counsel, Leopold & Associates (Leopold), was substituted for Rosicki. On August 3, 2015, Leopold filed the signed notice discontinuing action, dated July 15, 2015 (the discontinuance), together with the affirmation canceling the lis pendens (exhibit J). The matter was marked as disposed on the court's calendar. Plaintiff now moves to vacate its discontinuance, and to restore the action to the court's calendar. Defendant opposes the motion, and cross-moves to cancel and discharge of record the subject mortgage.

Plaintiff argues, pursuant to CPLR 2221 (a) and 2001, that the discontinuance should be vacated because it was filed by mistake since there was no intent to file it, that it was filed as a result of law office failure, and that if the discontinuance is not vacated, plaintiff's rights will be prejudiced.

CPLR 2221 (Motion affecting prior order) states:

"(a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she{**60 Misc 3d at 174} is for any reason unable to hear it, except that:

"1. if the order was made upon a default such motion may be made, on notice, to any judge of the court; and

"2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court."

CPLR 2001 (mistakes, omissions, defects and irregularities) states:

"At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid."

[1] Plaintiff mistakenly relies on CPLR 2221 and 2001 as grounds upon which to vacate the discontinuance filed by its mistake on August 3, 2015. Relief pursuant to CPLR 2221 (a) is applicable to orders made by the court. The only order signed by the court in this action is the short form order (exhibit H), which plaintiff does not now seek to renew, reargue, vacate or modify. It is noted that, in the short form order, plaintiff was granted leave to resubmit the motion on proper papers, which it declined to do. Instead plaintiff elected to file the discontinuance, pre-answer. (See CPLR 3217 [a] [1].)

[2] As to relief pursuant to CPLR 2001, in Goldenberg v Westchester County Health Care Corp. (16 NY3d 323, 327 [2011]), the Court stated the "purpose [of CPLR 2001] was to allow trial courts to fix or, where nonprejudicial, overlook defects in the filing process, including the failure to acquire or purchase an index number, so long as the applicable fees were eventually paid." The objective of the measure was to "clarify that a mistake in the method of filing, as opposed to a mistake in what is filed, is a mistake subject to correction in the court's discretion." (Id. at 328 [emphasis omitted].) The mistake alleged here is that the voluntary discontinuance should not have been filed by the attorneys for the plaintiff. However, the{**60 Misc 3d at 175} allegation alone is inadequate to justify granting a correction or other relief pursuant to CPLR 2001.

[3] There has been more than a two-year delay between the filing of the voluntary discontinuance and plaintiff's present motion. Plaintiff has not submitted an affirmation or affidavit from a person with personal knowledge explaining the circumstances surrounding the filing of the voluntary discontinuance, or why it was a mistake. In its reply affirmation, plaintiff's counsel contends the delays and discontinuances were based upon the erroneous belief that plaintiff wished to discontinue, but again submits no evidence or facts to explain how and why the discontinuance was filed in the first place. It has been long held that an attorney's authority to discontinue an action is presumed and binding upon its client particularly where there is no settlement or release involved. (Barrett v Third Ave. R.R. Co., 45 NY 628 [1871].) A discontinuance executed by an attorney is enforceable, despite the allegation that the attorney mistakenly believed he had obtained his client's approval, where the stipulation is not the product of mutual mistake, duress, illegality or fraud. (Ortiz v Brooks, 135 AD3d 921 [2d Dept 2016].) Here, the filing of the pre-answer voluntary discontinuance was a unilateral act. Accordingly, the court denies plaintiff's motion to vacate the discontinuance.

Turning to defendant's cross motion to cancel and discharge of record the subject mortgage, RPAPL 1501 (4) provides that where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose a mortgage has expired, any person with an estate or interest in the property may maintain an action to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom. A property owner makes a prima facie showing of its [*3]entitlement to judgment as a matter of law by establishing that the subject mortgage is unenforceable since the debt had been accelerated and the six-year limitations period for the commencement of an action to foreclose the mortgage expired, causing the commencement of a new foreclosure action to be time-barred. (MSMJ Realty, LLC v DLJ Mtge. Capital, Inc., 157 AD3d 885 [2d Dept 2018]; JBR Constr. Corp. v Staples, 71 AD3d 952 [2d Dept 2010].)

[4] However, here, while defendant has shown that a foreclosure action was commenced by plaintiff on January 23, 2009, he has not shown that a new foreclosure action would be time-{**60 Misc 3d at 176}barred by the applicable statute of limitations. This is because there has been a revocation of acceleration resulting from plaintiff's voluntary discontinuance of the prior acceleration of the underlying debt. In Assyag v Wells Fargo Bank N.A. (2016 NY Slip Op — [U] [Sup Ct, Queens County, Sept. 7, 2016]), the court found that a voluntary discontinuance may be sufficient to constitute a proper revocation of acceleration. This court is in agreement with Assyag that a pre-answer voluntary discontinuance, without court action, done within the statute of limitations, constitutes a revocation of acceleration (4 Cosgrove 950 Corp v Deutsche Bank Natl. Trust Co., 2016 NY Slip Op 32855[U] [Sup Ct, NY County, May 11, 2016]). Since plaintiff voluntarily discontinued the action before the statute of limitations expired, the court finds the filing of the voluntary discontinuance was an affirmative act by plaintiff to revoke its acceleration. Consequently, the statute of limitations runs anew from the due date of unpaid installments, thereby allowing plaintiff to commence a new foreclosure action under the relevant mortgage, but subject to a new six-year statute of limitations. Defendant has failed to show that a new foreclosure action would be time-barred; hence, the cross motion is denied.

The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby ordered that the motion of plaintiff Deutsche Bank National Trust Company as Trustee under the Pooling and Servicing Agreement Dated as of March 1, 2007, Securitized Asset-Backed Receivables, LLC Trust 2007-BRI Mortgage Pass-Through Certificates, Series 2007-BRI, made pursuant to CPLR 2001 and 2221 (a), for an order vacating the stipulation of discontinuance and restoring the action to the calendar (mot sequence 2), is denied; and it is further ordered that the cross motion of defendant Thomas Lee, made pursuant to RPAPL 1501 (4), to cancel and discharge of record the subject mortgage (mot sequence 3), is denied.