The 6-Month Savings Provision Saves Another Otherwise Time-Bared Mortgage from the Abyss of the New

Foreclosure Counsel in New York must stay abreast of current court cases about the Statute of Limitations. A recent case, Bank of NY Mellon v. Slavin, 2017 NY Slip Op 08767 (3d Dept. 2017), discusses the applicability of a 6-month savings provision to a matter that was dismissed, but the dismissal appealed. (Editor’s note: The 6-month savings provision allows a plaintiff to sue one a time-barred action as long as the action is brought within 6 months of the termination of a prior action—with some exceptions like dismissal on the merits, lack of prosecution, or voluntary discontinuance.)

A 2006 foreclosure action was dismissed in January 2013, for Plaintiff’s failure to attend a court-ordered conference. The Plaintiff moved to vacate the dismissal. The Plaintiff appealed the denial of its motion to vacate the dismissal. The Plaintiff lost on appeal.

Within one month after the Appellate Division denied Plaintiff’s appeal on the dismissal of the 2006 action, Plaintiff commenced a new action under the 6-month savings provision of N.Y. C.P.L.R. § 205(a). Plaintiff and Defendant cross-moved for summary judgment. The trial level court granted defendant’s motion and dismissed the Complaint as being time-barred. Plaintiff appealed.

The Appellate Division overturned the lower court, denied the defendant’s cross-motion and granted Plaintiff’s motion for summary judgment. One justice dissented.

The majority held that the second action was timely commenced because “the commencement of the six-month period begins when the action is finally terminated, generally when all appeals as of right have been exhausted.” Since Plaintiff timely moved to vacate the dismissal of the 2006 action and then timely appealed the denial of that motion, the matter was not terminated until the conclusion of the appeal. Thus, the second action was timely under §205(a).

The dissenting judge agreed that the 6-month savings provision applied to the dismissal based upon missing a conference, but believed that the 6-month period started to run from the 2013 dismissal and not the 2015 finality of the appeal. First, he opines that the 2013 dismissal did not provide the Plaintiff an appeal as of right and, therefore, the matter was terminated in 2013. Second, he opines that the Plaintiff waived the right to commence the second action within 6-months. Third, he opines that a defaulting Plaintiff does not have to follow strict timelines required for a Plaintiff who lost on the merits—basically an equitable argument; “[a] defendant should not be left to a defaulting plaintiff’s whim regarding when an action is deemed terminated…”

In New York, the losing party on appeal may appeal as of right to the states highest court where the Appellate Division’s opinion was not unanimous. We may see the New York State Court of Appeals weigh in on this subject within the next year or two. Stay tuned!