The plaintiff in Deluca filed an initial foreclosure action (“First Action”) against the defendant-borrower in March 2011.   In September 2015, the First Action was dismissed as a result of the plaintiff failing to comply with a court-ordered deadline to file a motion for judgment of foreclosure and sale .   Plaintiff subsequently moved to vacate the dismissal, but that motion was denied in April 2016.  In October 2019, Plaintiff noticed a timely appeal of the denial of the vacatur motion.  Plaintiff failed to perfect the appeal and the appeal was deemed dismissed in July 2020.

A second foreclosure action (“Second Action”) was then commenced in October 2020, within four months of the denial of the First Action appeal.  Defendant initially defaulted in the Second Action, but thereafter moved to vacate the default and dismiss on statute of limitations grounds.  The trial court granted Defendant’s motion and dismissed the Second Action as time-barred and Plaintiff appealed.

The Third Department held that the Second Action was untimely because it was filed more than six years after the First Action, and that there was no de-acceleration of the indebtedness.  Furthermore, the Third Department held that the foreclosure plaintiff was not entitled to a six-month re-filing period under CPLR 205(a) nor under the new CPLR 205-a.   The Third Department reasoned that the First Action was dismissed because of Plaintiff’s pattern of delay.  In such instances, a plaintiff is not entitled to make use of the six month savings clause.

The Third Department did not take the opportunity to discuss the retroactivity or constitutionality of FAPA.  Those issues remain unsettled in New York courts and parties will continue to seek clarity from the intermediate appellate courts, and, eventually, the Court of Appeals.