S T A T E O F N E W Y O R K
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7737--B
Cal. No. 274
2021-2022 Regular Sessions
I N A S S E M B L Y
May 20, 2021
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Introduced by M. of A. WEINSTEIN, ZINERMAN, SOLAGES, SEAWRIGHT, COLTON,
SIMON, ZEBROWSKI, PRETLOW, BURDICK, BRONSON, DAVILA, ENGLEBRIGHT,
DINOWITZ, GLICK, SAYEGH -- read once and referred to the Committee on
Judiciary -- reported and referred to the Committee on Rules -- Rules
Committee discharged, bill amended, ordered reprinted as amended and
recommitted to the Committee on Rules -- ordered to a third reading,
amended and ordered reprinted, retaining its place on the order of
third reading
AN ACT to amend the real property actions and proceedings law, the
general obligations law and the civil practice law and rules, in
relation to the rights of parties involved in actions commenced upon
real property related instruments
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be cited as
the "foreclosure abuse prevention act".
§ 2. Subdivision 3 of section 1301 of the real property actions and
proceedings law, as added by chapter 312 of the laws of 1962, is amended
and a new subdivision 4 is added to read as follows:
3. While the action is pending or after final judgment for the plain-
tiff therein, no other action shall be commenced or maintained to
recover any part of the mortgage debt, INCLUDING AN ACTION TO FORECLOSE
THE MORTGAGE, without leave of the court in which the former action was
brought. THE PROCUREMENT OF SUCH LEAVE SHALL BE A CONDITION PRECEDENT TO
THE COMMENCEMENT OF SUCH OTHER ACTION AND THE FAILURE TO PROCURE SUCH
LEAVE SHALL BE A DEFENSE TO SUCH OTHER ACTION. FOR PURPOSES OF THIS
SUBDIVISION, IN THE EVENT SUCH OTHER ACTION IS COMMENCED WITHOUT LEAVE
OF THE COURT, THE FORMER ACTION SHALL BE DEEMED DISCONTINUED UPON THE
COMMENCEMENT OF THE OTHER ACTION, UNLESS PRIOR TO THE ENTRY OF A FINAL
JUDGMENT IN SUCH OTHER ACTION, A DEFENDANT RAISES THE FAILURE TO COMPLY
WITH THIS CONDITION PRECEDENT THEREIN, OR SEEKS DISMISSAL THEREOF BASED
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11254-08-2
A. 7737--B 2
UPON A GROUND SET FORTH IN PARAGRAPH FOUR OF SUBDIVISION (A) OF RULE
THIRTY-TWO HUNDRED ELEVEN OF THE CIVIL PRACTICE LAW AND RULES. THIS
SUBDIVISION SHALL NOT BE TREATED AS A STAY OR STATUTORY PROHIBITION FOR
PURPOSES OF CALCULATING THE TIME WITHIN WHICH AN ACTION SHALL BE
COMMENCED AND THE CLAIM INTERPOSED PURSUANT TO SECTIONS TWO HUNDRED FOUR
AND TWO HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND RULES.
4. IF AN ACTION TO FORECLOSE A MORTGAGE OR RECOVER ANY PART OF THE
MORTGAGE DEBT IS ADJUDICATED TO BE BARRED BY THE APPLICABLE STATUTE OF
LIMITATIONS, ANY OTHER ACTION SEEKING TO FORECLOSE THE MORTGAGE OR
RECOVER ANY PART OF THE SAME MORTGAGE DEBT SHALL ALSO BE BARRED BY THE
STATUTE OF LIMITATIONS.
§ 3. Subdivisions 4 and 5 of section 17-105 of the general obligations
law are amended to read as follows:
4. [Except as provided in subdivision five, no] AN acknowledgment,
waiver [or promise has any effect to], PROMISE OR AGREEMENT, EXPRESS OR
IMPLIED IN FACT OR IN LAW, SHALL NOT, IN FORM OR EFFECT, POSTPONE,
CANCEL, RESET, TOLL, REVIVE OR OTHERWISE extend the time limited for
commencement of an action to foreclose [or] A mortgage for any greater
time or in any other manner than that provided in this section, [nor]
unless it is made as provided in this section.
5. This section does not change the requirements[,] or the effect with
respect to the ACCRUAL OF A CAUSE OF ACTION, NOR THE time limited for
commencement of an action[, of] BASED UPON EITHER:
a. a payment or part payment of the principal or interest secured by
the mortgage, or
b. a stipulation made in an action or proceeding.
§ 4. Section 203 of the civil practice law and rules is amended by
adding a new subdivision (h) to read as follows:
(H) CLAIM AND ACTION UPON CERTAIN INSTRUMENTS. ONCE A CAUSE OF ACTION
UPON AN INSTRUMENT DESCRIBED IN SUBDIVISION FOUR OF SECTION TWO HUNDRED
THIRTEEN OF THIS ARTICLE 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 INTER-
POSE THE CLAIM, UNLESS EXPRESSLY PRESCRIBED BY STATUTE.
§ 5. Subdivision (c) of section 205 of the civil practice law and
rules, as amended by chapter 216 of the laws of 1992, is amended to read
as follows:
(c) Application. This section also applies to a proceeding brought
under the workers' compensation law BUT SHALL NOT APPLY TO ANY PROCEED-
ING GOVERNED BY SECTION TWO HUNDRED FIVE-A OF THIS ARTICLE.
§ 6. The civil practice law and rules is amended by adding a new
section 205-a to read as follows:
§ 205-A. TERMINATION OF CERTAIN ACTIONS RELATED TO REAL PROPERTY. (A)
IF AN ACTION UPON AN INSTRUMENT DESCRIBED UNDER SUBDIVISION FOUR OF
SECTION TWO HUNDRED THIRTEEN OF THIS ARTICLE IS TIMELY COMMENCED AND IS
TERMINATED IN ANY MANNER OTHER THAN A VOLUNTARY DISCONTINUANCE, A FAIL-
URE 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 SUBDIVISION THREE OF SECTION THIRTY-ONE HUNDRED TWEN-
TY-SIX, SECTION THIRTY-TWO HUNDRED FIFTEEN, RULE THIRTY-TWO HUNDRED
SIXTEEN AND RULE THIRTY-FOUR HUNDRED FOUR OF THIS CHAPTER, FOR VIOLATION
OF ANY COURT RULES OR INDIVIDUAL PART RULES, FOR FAILURE TO COMPLY WITH
ANY COURT SCHEDULING ORDERS, OR BY DEFAULT DUE TO NONAPPEARANCE FOR
CONFERENCE OR AT A CALENDAR CALL, OR BY FAILURE TO TIMELY SUBMIT ANY
ORDER OR JUDGMENT, OR UPON A FINAL JUDGMENT UPON THE MERITS, THE
A. 7737--B 3
ORIGINAL PLAINTIFF, OR, IF THE ORIGINAL PLAINTIFF DIES AND THE CAUSE OF
ACTION SURVIVES, HIS OR HER EXECUTOR OR ADMINISTRATOR, MAY COMMENCE A
NEW ACTION UPON THE SAME TRANSACTION OR OCCURRENCE OR SERIES OF TRANS-
ACTIONS OR OCCURRENCES WITHIN SIX MONTHS FOLLOWING THE TERMINATION,
PROVIDED THAT THE NEW ACTION WOULD HAVE BEEN TIMELY COMMENCED WITHIN THE
APPLICABLE LIMITATIONS PERIOD PRESCRIBED BY LAW AT THE TIME OF THE
COMMENCEMENT OF THE PRIOR ACTION AND THAT SERVICE UPON THE ORIGINAL
DEFENDANT IS COMPLETED WITHIN SUCH SIX-MONTH PERIOD. FOR PURPOSES OF
THIS SUBDIVISION:
1. A SUCCESSOR IN INTEREST OR AN ASSIGNEE OF THE ORIGINAL PLAINTIFF
SHALL NOT BE PERMITTED TO COMMENCE THE NEW ACTION, UNLESS PLEADING AND
PROVING THAT SUCH ASSIGNEE IS ACTING ON BEHALF OF THE ORIGINAL PLAIN-
TIFF; AND
2. IN NO EVENT SHALL THE ORIGINAL PLAINTIFF RECEIVE MORE THAN ONE
SIX-MONTH EXTENSION.
(B) WHERE THE DEFENDANT HAS SERVED AN ANSWER AND THE ACTION UPON AN
INSTRUMENT DESCRIBED UNDER SUBDIVISION FOUR OF SECTION TWO HUNDRED THIR-
TEEN OF THIS ARTICLE IS TERMINATED IN ANY MANNER, AND A NEW ACTION UPON
THE SAME TRANSACTION OR OCCURRENCE OR SERIES OF TRANSACTIONS OR OCCUR-
RENCES IS COMMENCED BY THE ORIGINAL PLAINTIFF, OR A SUCCESSOR IN INTER-
EST OR ASSIGNEE OF THE ORIGINAL PLAINTIFF, THE ASSERTION OF ANY CAUSE OF
ACTION OR DEFENSE BY THE DEFENDANT IN THE NEW ACTION SHALL BE TIMELY IF
SUCH CAUSE OF ACTION OR DEFENSE WAS TIMELY ASSERTED IN THE PRIOR ACTION.
§ 7. Subdivision 4 of section 213 of the civil practice law and rules
is amended by adding two new paragraphs (a) and (b) to read as follows:
(A) IN ANY ACTION ON AN INSTRUMENT DESCRIBED UNDER THIS SUBDIVISION,
IF THE STATUTE OF LIMITATIONS IS RAISED AS A DEFENSE, AND IF THAT
DEFENSE IS BASED ON A CLAIM THAT THE INSTRUMENT AT ISSUE WAS ACCELERATED
PRIOR TO, OR BY WAY OF COMMENCEMENT OF A PRIOR ACTION, A PLAINTIFF SHALL
BE ESTOPPED FROM ASSERTING THAT THE INSTRUMENT WAS NOT VALIDLY ACCELER-
ATED, UNLESS THE PRIOR ACTION WAS DISMISSED BASED ON AN EXPRESSED JUDI-
CIAL DETERMINATION, MADE UPON A TIMELY INTERPOSED DEFENSE, THAT THE
INSTRUMENT WAS NOT VALIDLY ACCELERATED.
(B) IN ANY ACTION SEEKING CANCELLATION AND DISCHARGE OF RECORD OF AN
INSTRUMENT DESCRIBED UNDER SUBDIVISION FOUR OF SECTION FIFTEEN HUNDRED
ONE OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, A DEFENDANT SHALL
BE ESTOPPED FROM ASSERTING THAT THE PERIOD ALLOWED BY THE APPLICABLE
STATUTE OF LIMITATION FOR THE COMMENCEMENT OF AN ACTION UPON THE INSTRU-
MENT HAS NOT EXPIRED BECAUSE THE INSTRUMENT WAS NOT VALIDLY ACCELERATED
PRIOR TO, OR BY WAY OF COMMENCEMENT OF A PRIOR ACTION, UNLESS THE PRIOR
ACTION WAS DISMISSED BASED ON AN EXPRESSED JUDICIAL DETERMINATION, MADE
UPON A TIMELY INTERPOSED DEFENSE, THAT THE INSTRUMENT WAS NOT VALIDLY
ACCELERATED.
§ 8. Rule 3217 of the civil practice law and rules is amended by
adding a new subdivision (e) to read as follows:
(E) 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.
§ 9. Severability clause. If any clause, sentence, paragraph, section
or part of this act shall be adjudged by any court of competent juris-
diction to be invalid, such judgment shall not affect, impair or invali-
date the remainder thereof, but shall be confined in its operation to
A. 7737--B 4
the clause, sentence, paragraph, section or part thereof directly
involved in the controversy in which such judgment shall have been
rendered.
§ 10. This act 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.