Supreme Court, Queens County, October 18, 2023

Law Office of Maggio & Meyer PLLC, Bohemia (Holly C. Meyer of counsel), for Santhana Kumar Nataraja Naidu, defendant.

Day Pitney LLP, New York City (Christina A. Livorsi of counsel), for plaintiff.

It is hereby ordered that the motion is disposed of as follows:

In this mortgage foreclosure action, defendant Santhana Kumar Nataraja Naidu moves inter alia pursuant to CPLR 2221 (e) to vacate an order which denied defendant's previous cross-motion to dismiss this action as time-barred, and upon renewal, dismiss this action pursuant to CPLR 3211 (a) (5).

It appears upon the court's record that plaintiff commenced a previous foreclosure action under Queens County Supreme Court index number 20090/2009 to foreclose upon the same mortgage and note as herein. It is undisputed that the commencement of the 2009 action accelerated the underlying mortgage debt. (Beneficial Homeowner Serv. Corp. v Tovar, 150 AD3d 657, 658 [2d Dept 2017].) It further appears that the 2009 foreclosure action was discontinued by stipulation of discontinuance dated February 18, 2014.

Thereafter, plaintiff commenced the instant action with the filing of a summons and complaint on January 13, 2016. In August 2016, plaintiff moved for summary judgment and order of reference herein, and defendant cross-moved for dismissal pursuant to CPLR 3211 (a) (5) based upon the statute of limitations arguing that as the debt was accelerated in 2009, the instant action is untimely as a matter of law. In a court order by the retired Justice Robert McDonald dated September 9, 2016, plaintiff's application was granted and defendant's cross-motion for dismissal was denied (2016 NY Slip Op 32110[U] [Sup Ct, Queens County 2016]). In said decision, based upon the law at the time, Justice McDonald opined that the discontinuance of the 2009 action acted as a deacceleration of the underlying debt, and as such, the statute of limitations had been reset and the instant action was timely commenced.

Defendant filed an appeal of the court order and the Appellate Division, Second Department reversed, finding that the mere filing of a stipulation of discontinuance, without an [*2]affirmative act of revocation of acceleration, was insufficient to demonstrate that the loan was deaccelerated, and found that this action was indeed time-barred (175 AD3d 1387 [2d Dept 2019]). Thereafter, plaintiff appealed the Second Department{**82 Misc 3d at 454} decision to the New York State Court of Appeals, which was granted in February 2020 (34 NY3d 910 [2020]). In February 2021, the New York State Court of Appeals reversed the Second Department determination and found that the stipulation of discontinuance of the 2009 action (the withdrawal of the complaint) was an act of deacceleration (revocation of acceleration) in the companion decision of Freedom Mtge. Corp. v Engel (37 NY3d 1 [2021]). Applying this rationale, the Court of Appeals found that the stipulation of discontinuance of the 2009 action "revoked" the acceleration of the underlying debt and therefore this action was timely commenced (37 NY3d at 34-35). The Court of Appeals reinstated the action and remitted the matter to the Appellate Division, Second Department for consideration of issues raised but not resolved.

Thereafter, in December 2022 the New York State Legislature passed the Foreclosure Abuse Prevention Act (L 2022, ch 821) (FAPA) which amended several sections of the CPLR. In passing FAPA the Legislature stated that "[t]his act [FAPA] shall take effect immediately and shall apply to all actions commenced on an instrument described under subdivision four of section two hundred thirteen of the civil practice law and rules in which a final judgment of foreclosure and sale has not been enforced" (2022 McKinney's Sess Law News of NY at 3201 [L 2022, ch 821, § 10]). The section of the CPLR which was amended by FAPA relevant here is CPLR 3217, which states in pertinent part:

"Effect of discontinuance upon certain instruments. In any action on an instrument described under subdivision four of section two hundred thirteen of this chapter, 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 CPLR 3217 [e], as amended.)

It is on this basis that defendant now moves for leave to renew, as she contends that FAPA constitutes a change in the law that would alter this court's prior determination. Specifically, here, defendant argues that CPLR 3217 (e) as amended by FAPA rejects the determination that the 2009 stipulation of discontinuance revoked acceleration of the underlying debt, and as such, this action is time-barred as a matter of law.{**82 Misc 3d at 455}

It is well settled that "[a] motion for leave to renew . . . shall . . . demonstrate that there has been a change in the law that would change the prior determination." (CPLR 2221 [e] [2]; see Dinallo v DAL Elec., 60 AD3d 620, 621 [2d Dept 2009]; see also McLaughlin v Snowlift, Inc., 214 AD3d 720, 721 [2d Dept 2023].) "A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law." (Dinallo, 60 AD3d at 621.) Ordinarily, a motion for leave to renew "must be made . . . before the time to appeal [the final judgment] has expired" (id.), yet FAPA specifically 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." (FAPA § 10; see generally Matter of Tucker v Board of Educ., Community School Dist. No. 10, 82 NY2d 274, 278 [1993]; Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 NY3d 377, 400 [2017].)

Here, the court finds that FAPA presents a change in the law which is sufficient to grant defendant's application pursuant to CPLR 2221 (e) (2). Further, as the court has not issued a final judgment of foreclosure and sale, and as no such judgment has been enforced, the motion is timely.

With regard to defendant's application pursuant to CPLR 3211 (a) (5) based upon FAPA, plaintiff opposes defendant's motion arguing that FAPA should not be applied retroactively as such application would: (i) violate plaintiff's constitutional rights; (ii) constitute a taking without just compensation; (iii) impair plaintiff's vested rights to litigate a timely action; and (iv) rewrite the underlying mortgage and note. It appears, in sum, that plaintiff constrains its opposition to whether the court can or should apply FAPA retroactively, and whether applying FAPA retroactively herein would violate plaintiff's constitutional rights.

The court shall consider plaintiff's arguments in turn below.

As an initial matter, it is well settled that "[l]egislative enactments are entitled to a strong presumption of constitutionality" (Dalton v Pataki, 5 NY3d 243, 255 [2005] [internal quotation marks omitted]; Schulz v State of New York, 84 NY2d 231, 241 [1994]), and "courts strike them down only as a last unavoidable result" (Matter of Van Berkel v Power, 16 NY2d 37, 40 [1965]) and only after "every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible." (Matter of Fay, 291 NY 198, 207 [1943].) Thus, while the presumption of{**82 Misc 3d at 456} constitutionality is not irrefutable, when plaintiff is challenging the statute, plaintiff bears "the initial burden of demonstrating the statute's invalidity 'beyond a reasonable doubt.' " (LaValle v Hayden, 98 NY2d 155, 161 [2002], quoting People v Tichenor, 89 NY2d 769, 773 [1997]; see also Matter of Moran Towing Corp. v Urbach, 99 NY2d 443, 448 [2003]; Matter of Saratoga Water Servs. v Saratoga County Water Auth., 83 NY2d 205, 211 [1994]; Wiggins v Town of Somers, 4 NY2d 215, 218-219 [1958].)

Plaintiff's opposition first argues that FAPA was not intended to apply, and should not be applied, retroactively. There is, however, no presumption against applying a statute retroactively when the law does not "attach new legal consequences to events completed before its enactment." (American Economy Ins. Co. v State of New York, 30 NY3d 136, 147 [2017] [emphasis added].) Here, in applying FAPA to the case at bar, it does not appear that any new legal consequences attach. Rather, it appears that the retroactive application of FAPA merely restores the legal consequence of plaintiff's 2009 discontinuance, in effect at the time the stipulation of discontinuance was executed, and when the Appellate Division, Second Department dismissed this action as untimely in 2019. (See Ditech Fin., LLC v Naidu, 175 AD3d 1387 [2d Dept 2019]; see also Engel, 37 NY3d 1 [2021].) As such, FAPA "has no potentially problematic retroactive effect even when the liability arises from past conduct." (Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 365 [2020].) Therefore, plaintiff's argument that application of FAPA attaches new legal consequences is without merit, as the consequences resulting from FAPA were consistent with prior determinations and do not constitute new legal consequences.

Further, in considering the retroactive application of FAPA, a "court is to apply the law in effect at the time it renders its decision." (Landgraf v USI Film Products, 511 US 244, 264 [1994]; Matter of Mia S. [Michelle C.], 212 AD3d 17, 21 [2d Dept 2022].) Although statutory "[a]mendments are presumed to have prospective application," when the legislative intent is clear, "remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose." (Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117, 122 [2001]; Ex parte Collett, 337 US 55, 71 [1949]; Freeborn v Smith, 69 US 160, 164 [1864]; Majewski v Broadalbin-Perth Cent. School [*4]Dist., 91 NY2d 577,{**82 Misc 3d at 457} 584 [1998]; Nelson v HSBC Bank USA, 87 AD3d 995, 997 [2d Dept 2011]; Wade v Byung Yang Kim, 250 AD2d 323, 325 [2d Dept 1998]; Coffman v Coffman, 60 AD2d 181, 188 [2d Dept 1977].) A remedial statute is one which is "designed to correct imperfections in prior law, by generally giving relief to the aggrieved party." (Nelson v HSBC Bank USA, 87 AD3d at 998; see Matter of Asman v Ambach, 64 NY2d 989, 991 [1985].)

Here, the legislative intent behind FAPA is unequivocally clear in that the statute expressly states 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." (FAPA § 10; see Shielcrawt v Moffett, 294 NY 180, 188 [1945].) Second, a review of the written legislative history of FAPA also supports the retroactive application inasmuch as the sponsors' memorandums in support from both chambers demonstrate that FAPA is intended to apply retroactively, and the word "retroactive" is stated multiple times in the bill jacket. (See Matter of Duell v Condon, 84 NY2d 773, 784 [1995].) As such, the Legislature provided "clear intent" that FAPA was intended to be applied retroactively to pending foreclosure actions where a final judgment has not been enforced. (Landgraf, 511 US at 272.) Finally, an additional indication that the Legislature intended the retroactive application of FAPA is the title of the act itself, that being "Foreclosure Abuse Prevention." (FAPA § 1.) By asserting this title, the Legislature demonstrated its intent to prevent all foreclosure abuse, not just prospective, potential abuses that occur on newly commenced actions. The United States Supreme Court advises that it has been "long considered that the title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute." (Dubin v United States, 599 US 110, 120-121 [2023] [internal quotation marks omitted].) As such, the Legislature has made clear that the retroactive application of FAPA is integral to full achievement of FAPA's fundamental purpose. (See also U.S. Bank Trust, N.A. v Miele, 80 Misc 3d 839 [Sup Ct, Westchester County 2023].)

Plaintiff's arguments that FAPA should not be applied retroactively based upon the doctrine of "constitutional avoidance" are inapplicable, inasmuch as the case law regarding constitutional avoidance holds that "[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that{**82 Misc 3d at 458} score" and the doctrine only applies when "the statute [is] genuinely susceptible to two constructions." (Almendarez-Torres v United States, 523 US 224, 237-238 [1998].) Here, the court finds that FAPA is not fairly or genuinely susceptible to more than one interpretation, warranting the consideration of constitutional avoidance. Arguably, the only two interpretations are that either the Legislature intended FAPA to be applied retroactively, or it did not. In stating that FAPA applied to actions where a judgment of foreclosure had not been enforced, the Legislature clearly recognized that the statute was intended to be applied retroactively to all pending cases prior to the foreclosure auction. To hold otherwise, by accepting plaintiff's argument that it was not meant to be retroactive, would be nonsensical, because there would be no need to expressly state that it applied to cases prior to judgment enforcement, since no newly commenced cases would be in that posture. In light of the expressed intent to prevent foreclosure abuses then existing, the only logical conclusion is that the Legislature intended to apply FAPA to pending cases in pre-foreclosure auction status, and to accomplish this aim requires the statute to be applied retroactively.

Plaintiff's reliance on United States v Security Industrial Bank (459 US 70 [1982]) is unavailing, [*5]inasmuch as in Industrial the Court found there was no "explicit command from Congress" that the amendment of the law at issue therein was to apply retroactively, and the Court found that the statute was genuinely susceptible to more than one interpretation (id. at 81). As previously stated, the legislative intent behind FAPA is clear and its application will not lead to more than one interpretation. Thus, plaintiff's contentions that FAPA must not be applied retroactively based upon the doctrine of "constitutional avoidance" are without merit.

Plaintiff next argues that retroactive application of FAPA violates the Contracts Clause (US Const, art I, § 10 [1]) inasmuch as doing so "would rewrite the Mortgage." It is well settled that "[w]here there is no existing contractual agreement regarding the terms changed by the legislation," the legislation cannot violate the Contracts Clause. (See Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327, 359 [2005].) Here, there was no express language in the mortgage or note which allowed plaintiff to "revoke acceleration" (in essence, reset the statute of limitations) and as such, it cannot be said that enactment of FAPA is violative of the Contracts Clause.{**82 Misc 3d at 459}

Even taking that aside, as noted in the Senate sponsor's memo, the application of inclusio unius est exclusio alterius (the inclusion of one is the exclusion of another) precludes this court from finding the instant mortgage instrument allows the lender to "revoke acceleration" of the underlying debt. (See Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 560 [2014].) Rather, the instant mortgage, as with all uniform mortgage documents, expressly states that the right to unilateral revocation of acceleration is vested in the borrower exclusively. Similarly, the instant mortgage addresses the ability of unilateral acceleration, and affords that right to the lender exclusively. (See generally Bank of N.Y. Mellon v Dieudonne, 171 AD3d 34, 39 [2d Dept 2019].) This notion holds true to the binding precedent that "[i]n no event is . . . the mortgagee accorded rights beyond the stipulations of the mortgage." (Prudence Co. v 160 W. 73rd St. Corp., 260 NY 205, 212 [1932]; Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62, 72 [1978] ["(C)ourts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include"].)

Further, the "election of remedies doctrine" also proves fatal to plaintiff's challenge under the Contracts Clause. In the original 2009 foreclosure action, plaintiff could have chosen to bring said action to recover just the past due sums pursuant to RPAPL 1351 (2). However, upon commencement plaintiff chose to declare all sums due immediately, which, in itself, constitutes an election of remedies. (See Clark v Kirby, 243 NY 295, 301 [1926].) Once an election of remedies is made it cannot be retracted. It is final and cannot be altered. (Ost v Mindlin, 170 App Div 558, 560 [1st Dept 1915], affd 224 NY 668 [1918]; Conrow v Little, 115 NY 387 [1889]; Fowler v Bowery Sav. Bank, 113 NY 450, 456 [1889]; see also Kilpatrick v Germania Life Ins. Co., 183 NY 163, 168 [1905] ["The election (to accelerate the mortgage) once made was final and not subject to change"].) While prejudice is recognized as relevant to consideration of waiver and estoppel, the concept of substantial prejudice has no relevance when considering the election of remedies. (See The Election of Remedies, 23 Colum L Rev 380 [Issue No. 4] [Apr. 1923]; compare Werking v Amity Estates, 2 NY2d 43, 53 [1956] [to constitute estoppel, "(t)he other party, too, must have acted upon the strength of such admission or conduct"], with Whalen v Stuart, 194 NY 495, 505 [1909] ["Where a party has an election between two inconsistent remedies, he is bound by{**82 Misc 3d at 460} that which he first chooses"]; cf. Golden v Ramapo Improvement Corp., 78 AD2d 648, 650 [2d Dept 1980] [When the court applied waiver or estoppel to permit the revocation of acceleration in the absence of substantial [*6]prejudice, election of remedies was not considered].)

In any event, plaintiff's ability to revoke the loan's acceleration remains unimpaired as FAPA did not disturb the Court of Appeals' opinion in Engel, which holds that absent a contemporaneous statement to the contrary, a discontinuance of a foreclosure will revoke a prior election to accelerate. Instead, FAPA merely addresses the effect of revoking acceleration as it pertains to the statute of limitations so as to reconcile with General Obligations Law § 17-105 and CPLR 201. Although the analyzation of this reconciliation was not discussed Engel, the notion was determinative in Batavia Townhouses, Ltd. v Council of Churches Hous. Dev. Fund Co., Inc. (38 NY3d 467, 472-473 [2022] ["General Obligations Law § 17-105, by its express terms, is the sole statute governing the tolling or revival of the statute of limitations for an action to foreclose a mortgage"]; US Bank N.A. v Williams, 80 Misc 3d 258 [Sup Ct, Putnam County 2023]; see generally Petito v Piffath, 85 NY2d 1, 7-8 [1994]; John J. Kassner & Co. v City of New York, 46 NY2d 544, 551 [1979]).

As noted in the Senate sponsor's memo, FAPA merely codified long-standing law. (See e.g. Ackerman v Price Waterhouse, 84 NY2d 535, 542-543 [1994] [rejecting accrual date calculation method that "is subject to manipulation, rendering it inconsistent with the definite statutory period" (emphasis added)]; see also Deutsche Bank Natl. Trust Co. v Flagstar Capital Mkts., 32 NY3d 139, 153 [2018] [explaining that "(t)he public policy represented by the statute of limitations, CPLR 201, and General Obligations Law § 17-103 would be effectively abolished if contracting parties could circumvent it by postponing the time from which the period of limitation is to be computed" (internal quotation marks and brackets omitted)]; Portfolio Recovery Assoc., LLC v King, 14 NY3d 410, 418 [2010] [noting that a "key polic(y) . . . (is) to prevent . . . (plaintiffs from) attempting to take advantage of . . . statute(s) of limitations"]; Firth v State of New York, 98 NY2d 365, 370 [2002] [rejecting a rule that would allow for "endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants"]; Blanco v American Tel. & Tel. Co., 90 NY2d 757, 774 [1997] [rejecting a rule that "would give a plaintiff the {**82 Misc 3d at 461}power to put off the running of the Statute of Limitations indefinitely" (internal quotation marks omitted)].)

Therefore, as plaintiff's right to revoke acceleration (resetting the statute of limitations) is not found in the mortgage contract, and implying same into the contract would directly contravene the law of contracts, the election of remedies doctrine, CPLR 201 and General Obligations Law § 17-105, plaintiff's arguments that the retroactive application of FAPA violates the Contracts Clause are unavailing. (See General Motors Corp. v Romein, 503 US 181, 186-191 [1992]; see also Sveen v Melin, 584 US 811, 819-820 [2018]; Energy Reserves Group, Inc. v Kansas Power & Light Co., 459 US 400, 413-416 [1983].)

Plaintiff next alleges that FAPA violates the Takings Clause of the U.S. Constitution, as it removes plaintiff's ability and right to revoke acceleration of the mortgage. It is well settled that "[t]he threshold step in any Takings Clause analysis is to determine whether a vested property interest has been identified." (American Economy Ins. Co., 30 NY3d at 155.) In that regard, as aforementioned, the instant mortgage document does not contain any express language that plaintiff enjoyed the specific right to revoke acceleration, and therefore FAPA does not take any express right of plaintiff. Further, the mortgage document does not expressly afford plaintiff the right to reset the statute of limitations, in that the "proscribed use" of the note and mortgage was "not part of [plaintiff's] title to begin with" (Lucas v South Carolina Coastal Council, 505 US 1003, 1027 [1992]), irrespective of FAPA's general effect on plaintiff's property which are the loan instruments. Rather, since the enactment of CPLR 201 (L 1962, ch 308 [eff Sept. 1, 1963]), the law has long proscribed a court to extend the time to commence an action outside of the [*7]applicable statute of limitations "unless a different time is prescribed by law." (CPLR 201.)

As aforementioned, the "property" at issue herein is comprised of two physical, paper-based instruments, each constituting an item of personal property. (See Smith v Bank of Am., N.A., 103 AD3d 21, 27 [2d Dept 2012]; Flyer v Sullivan, 284 App Div 697, 698 [1st Dept 1954]; Stickler v Ryan, 270 App Div 962, 962 [3d Dept 1946], lv dismissed 296 NY 735 [1946].) The Supreme Court has upheld the axiom that personal property may be rendered "economically worthless" without impeding upon the Takings Clause due to "the State's traditionally high degree of control over commercial dealings." (Lucas, 505 US at 1027-1028.)

{**82 Misc 3d at 462}When considering plaintiff's arguments regarding the Takings Clause, the court's applicable test is:

"[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations . . . [and] the character of the governmental action—for instance whether it amounts to a physical invasion or instead merely affects property interests through some public program adjusting the benefits and burdens of economic life to promote the common good." (See Lingle v Chevron U. S. A. Inc., 544 US 528, 538-539 [2005] [internal quotation marks omitted]; see Horne v Department of Agriculture, 576 US 351, 361 [2015]; 1256 Hertel Ave. Assoc., LLC v Calloway, 761 F3d 252, 264 [2d Cir 2014].)

Here, plaintiff fails to demonstrate that it possessed "reasonable" and "distinct investment-backed expectations" in that plaintiff made an investment decision with the expectation of being able to "revoke acceleration." Assuming arguendo that this was plaintiff's expectation, plaintiff failed to demonstrate that said expectation was reasonable. (See Loretto v Teleprompter Manhattan CATV Corp., 53 NY2d 124, 151 [1981] [" 'reasonable investment-backed expectations' refers not to the over-all investment in the property, but to investment made with a now frustrated particular purpose or 'expectation' in mind"].) Accordingly, as plaintiff has failed to set forth the requisite showing, plaintiff's challenge of FAPA based upon unconstitutional taking is not persuasive.

Further, it appears that FAPA reconciled a common-law omission with General Obligations Law § 17-105 and CPLR 201, and restored the statute of limitations' "finality, certainty and predictability," given that "statutes of limitation not only save litigants from defending stale claims, but also express a societal interest or public policy of giving repose to human affairs." (ACE Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured Prods., Inc., 25 NY3d 581, 593 [2015] [internal quotation marks and brackets omitted].) FAPA is not tantamount to a taking, physical invasion, or appropriation, but merely affects plaintiff's ownership in personal property through a legislative "program adjusting the benefits and burdens of economic life to promote the common good." (Lingle, 544 US at 539.)

{**82 Misc 3d at 463}In any event, General Obligations Law § 17-105 has regulated extensions and tolls of the limitations period to enforce a mortgage upon real property since 1961 (first enacted as Real Property Law § 251-a, added via L 1961, ch 582), and serves as the exclusive means to do so (cf. General Obligations Law § 17-103 [4] [c]; see Batavia Townhouses, Ltd. v Council of Churches Hous. Dev. Fund Co., Inc., 38 NY3d 467, 472 [2022]), and is relied upon as the "background principle[ ] of the State's law of property." (Lucas, 505 US at 1029.) FAPA's amendments to CPLR 203 and CPLR 3217—as derived from General Obligations Law § 17-105 and CPLR 201—"inhere in the title itself, in the restrictions that background principles of the State's law of property . . . already place upon . . . ownership." (Id.) This regulation "serves both to define the scope of a judgment lienholder's property interest and its reasonable investment-backed expectations" (1256 Hertel Ave. Assoc., LLC v Calloway, 761 F3d 252, 266[*8][2d Cir 2014]), such that FAPA's enhancement of such regulation cannot upset plaintiff's reasonable investment-backed expectations. (Id.; cf. Palazzolo v Rhode Island, 533 US 606, 629-630 [2001].)

As the United States Supreme Court has repeatedly held, "[t]hose who do business in [a] regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end." (Connolly v Pension Benefit Guaranty Corporation, 475 US 211, 222-227 [1986] ["This is true even though the effect of the legislation is to impose a new duty or liability based on past acts"]; see also Concrete Pipe & Products of Cal., Inc. v Construction Laborers Pension Trust for Southern Cal., 508 US 602, 641-646 [1993].) "This is particularly true in an area, such as [the enforcement of mortgages on real property], that has long been the source of public concern and the subject of government regulation." (Ruckelshaus v Monsanto Co., 467 US 986, 1005-1007 [1984].) "Plaintiff undertook its business . . . with the knowledge that it was [participating in the mortgage enforcement industry]. Thus, its general investment expectations included the knowledge that it was subject to extensive regulation. The current statutory scheme cannot have frustrated its reasonable expectations . . . [and] [t]here is no taking." (Rochester Gas & Elec. Corp. v Public Serv. Commn. of State of N.Y., 71 NY2d 313, 324-325 [1988] [internal quotation marks omitted]; see Ruckelshaus, 467 US at 1005 ["the force of this factor is so overwhelming . . . that it disposes of the taking question"].)

{**82 Misc 3d at 464}Thus the court concludes that plaintiff failed to sustain its "heavy burden of overcoming the presumption of constitutionality that attaches to the regulation and of proving every element of [its takings objection] beyond a reasonable doubt." (de St. Aubin v Flacke, 68 NY2d 66, 76 [1986].)

With regard to plaintiff's claim that FAPA's application would impair its vested rights, plaintiff identifies no right vested by the Constitution that FAPA affects to its detriment. (See generally Campbell v Holt, 115 US 620, 628-629 [1885] ["It is to be observed that the words 'vested right' are nowhere used in the constitution, neither in the original instrument nor in any of the amendments to it"].) Indeed, "[t]he Court of Appeals has recognized that the concept of 'vested rights,' as a means to avoid applying legislation retroactively, is a 'fiction.' " (Assembly Mem in Support of 2023 NY Assembly Bill A07464A n 2, quoting Matter of Hodes v Axelrod, 70 NY2d 364, 370 [1987].) As the Supreme Court has stated, "the constitutional impediments to retroactive civil legislation are now modest." (Landgraf, 511 US at 272.) "Absent a violation" of a specific constitutional provision, "the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope." (Id. at 267; see American Economy Ins. Co., 30 NY3d at 149.)

To the extent that plaintiff implies that Engel created a common-law rule affording it a vested right,

"a person has no property, no vested interest, in any rule of the common law. The Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object, despite the fact that otherwise settled expectations may be upset thereby." (Duke Power Co. v Carolina Environmental Study Group, Inc., 438 US 59, 88 n 32 [1978] [internal quotation marks, brackets and citations omitted]; see also Matter of Jensen v Southern Pac. Co., 215 NY 514, 527-528 [1915], revd on other grounds 244 US 205 [1917].)

Case law makes clear that only a law in the nature of a contract (e.g., enacting a charter for a railroad or utility company, or creating an unconditional right to payment)—thus [*9]implicating the Contracts Clause—may create vested rights which are not divested by its repeal. (See American Economy Ins. Co., 30 NY3d at 156-157; United States v Little Lake Misere {**82 Misc 3d at 465}Land Co., 412 US 580, 586 [1973]; Pennsylvania R.R. Co. v State of New York, 11 NY2d 504, 511-512 [1962]; People ex rel. Cunningham v Roper, 35 NY 629, 638-639 [1866].) This is true even when a change in law mandates the dismissal of an action that was viable at the time of commencement (Blum v West End Assoc., 64 NY2d 939, 941 [1985]), or withdraws the right to appeal (People ex rel. Crane v Hahlo, 228 NY 309, 317 [1920]).

Therefore, even if Engel afforded plaintiff the ability to "revoke acceleration" and reset the statute of limitations, that common-law rule was not in the nature of a contract and therefore was divested upon the passage of FAPA. It is clear that the Legislature enacted FAPA "to remedy the rigor of the common law, which it was deemed unwise, on grounds of public policy, to continue." (Chamberlain v Western Transp. Co., 44 NY 305, 309 [1871].) Further, CPLR 201 expressly prescribes that

"[a]n action, including one brought in the name or for the benefit of the state, must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement. No court shall extend the time limited by law for the commencement of an action." (CPLR 201.)

Prior to the passage of FAPA, a plaintiff in a mortgage foreclosure action enjoyed the right of revoking acceleration of the mortgage debt, which was tantamount to allowing a plaintiff to start, stop and restart the statute of limitations at will. There are no statutes or rules of civil procedure prescribed which allow for a plaintiff, in any cause of action, to simply revoke the start of the statute of limitations. (See CPLR 105 [o] [Excluding common law from the definition of "law" as used in the CPLR].) The passage of FAPA, and the legislative intent behind it, was to prevent such an instance inasmuch as the "amendment was to clarify what the law was always meant to do and say." (Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117, 122 [2001].) Nevertheless, even if it is assumed for the sake of argument that FAPA encroached upon plaintiff's constitutionally protected vested rights, plaintiff makes no attempt to show how FAPA offends the "less rigid . . . and more candid consideration" of legislative policy required under contemporary vested rights analysis. (Matter of Hodes, 70 NY2d at 371.)

Finally, plaintiff argues that FAPA violates procedural due process, which leads to a two-pronged inquiry: (1) was plaintiff{**82 Misc 3d at 466} "deprived of a protected interest, and, if so, [2] what process was . . . due." (Logan v Zimmerman Brush Co., 455 US 422, 428 [1982].)

As to the first prong of the analysis, the proposition that the short-lived Engel decision created vested property rights in every mortgagee who sought to revoke a loan's acceleration, thereby resetting the statute of limitations period, finds no support in applicable precedent. As the United States Supreme Court explained in Board of Regents of State Colleges v Roth (408 US 564, 577 [1972]): "To have a property interest in a benefit, a person . . . must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." The Court added that "[i]t is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives." (Id.) "The question is not merely the 'weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the 'liberty or property' language of the Fourteenth Amendment." (Morrissey v Brewer, 408 US 471, 481 [1972] [citation omitted].) The Constitution only protects "vital" rights (Matter of Armere Holding Corp. v Bell, 37 NY2d 925, 926 [1975]) and "significant property interest[s]" (Laing v United States, 423 US 161, 186 [1976]) of which plaintiff failed to present neither rights nor interests.

The right to revoke acceleration of an underlying debt is far afield of the "ancient institution of property." (Board of Regents of State Colleges v Roth, 408 US at 577.) Instead, it appears the right of revocation arose in 2017, when the Second Department first held that a motion to discontinue created a triable issue of fact regarding whether the lender revoked a mortgage's acceleration, thereby resetting the statute of limitations, without addressing the apparent conflict with General Obligations Law § 17-105 (4) and CPLR 201. (See NMNT Realty Corp. v Knoxville 2012 Trust, 151 AD3d 1068, 1070 [2d Dept 2017].) This finding was then affirmed in 2021 by the Court of Appeals in Engel (37 NY3d at 28). Thereafter, the Legislature swiftly overruled this notion based upon strong public policy consideration, and it is therefore unpersuasive to suggest that the common law created by Engel and Knoxville was ever a principle "upon which people rel[ied] in their daily lives." (Board of Regents, 408 US at 577.)

In dealing with statutes, other than those that "manifest a legislative intent to create private rights of a contractual{**82 Misc 3d at 467} nature" (Cook v City of Binghamton, 48 NY2d 323, 330 [1979]), the Supreme Court has applied "[t]he presumption that such a law is not intended to create private contractual or vested rights, but merely declares a policy to be pursued until the Legislature shall ordain otherwise." (Dodge v Board of Ed. of Chicago, 302 US 74, 79 [1937].) A similar approach is even more clearly necessary in dealing with common-law rules: if every such rule were deemed to create constitutionally protected vested property rights, beyond the power of the Legislature to alter other than prospectively, numerous enactments that affected a common-law rule retroactively would be invalid, despite the established principle that "the great office of statutes is to remedy defects in the common law." (Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 454 [1982].) Indeed, if every common-law decision created constitutionally protected rights, then no court, appellate or otherwise, would be able to overrule its decisions with retroactive effect. (See generally Stop the Beach Renourishment, Inc. v Florida Dept. of Environmental Protection, 560 US 702, 721 [2010].) Instead, "[t]he expectations protected by the Constitution are based on objective rules and customs that can be understood as reasonable by all parties involved" (Murr v Wisconsin, 582 US 383, 397 [2017]), as "[t]he Constitution is concerned with practical, substantial rights, not with those that are unclear and gain hold by subtle and involved reasoning." (Federal Housing Administration v Darlington, Inc., 358 US 84, 90-92 [1958].)

Because no vested property right has been impaired, let alone that was constitutionally protected, the court here need not reach the second part of the inquiry—"what process was . . . due." (See Logan, 455 US at 428.) In any event, on that issue the law is equally clear: a legislature may enact statutes of general applicability, even affecting persons "to the point of ruin," without individualized notice and opportunity to be heard. (Bi-Metallic Investment Co. v State Bd. of Equalization of Colo., 239 US 441, 445 [1915]; see also United States v Locke, 471 US 84, 108 [1985] ["In altering substantive rights through enactment of rules of general applicability, a legislature generally provides constitutionally adequate process simply by enacting the statute"]; Richmond Boro Gun Club, Inc. v City of New York, 97 F3d 681, 689 [2d Cir 1996] ["When the legislature passes a law which affects a general class of persons, those persons have all received procedural due process—the legislative process"].) In sum, the Engel decision did not create a{**82 Misc 3d at 468} protected property interest, and, even if it did, plaintiff received all the process it was due: the legislative process.

The court finds the remainder of plaintiff's arguments to be without merit.

Accordingly, based upon the foregoing, defendant's application to renew pursuant to [*11]CPLR 2221 (e) is granted, and upon renewal, defendant's application to dismiss plaintiff's complaint as time-barred pursuant to CPLR 3211 (a) (5) is granted, and plaintiff's complaint is dismissed; and it is further ordered that the County Clerk of Queens County is directed, upon payment of proper fees, if any, to cancel and discharge a certain notice of pendency filed in this action on January 13, 2016, and January 11, 2019, against property known as 137-29 Laburnum Avenue, Flushing, NY 11355, Block 5150, Lot 46, and said Clerk is hereby directed to enter upon the margin of the record of same a notice of cancellation referring to this order.