Opinion
Index No. 500836 / 2021
05-19-2023
HSBC BANK USA, N.A., Plaintiff, v. Walid BESHARAT; Cindy Besharat a/k/a Cindy Ann Besharat, et al., Defendants.
Plaintiff is represented by Knuckles, Komosinski & Manfro, LLP, 565 Taxter Road, Elmsford, NY 10523. Defendants are represented by James Marsico, Esq. 2500 Westchester Ave., Suite 109, Purchase, NY 10577.
Plaintiff is represented by Knuckles, Komosinski & Manfro, LLP, 565 Taxter Road, Elmsford, NY 10523.
Defendants are represented by James Marsico, Esq. 2500 Westchester Ave., Suite 109, Purchase, NY 10577.
Victor G. Grossman, J.
The following papers numbered 1 to 10 were read on Plaintiff's motion for a judgment of foreclosure and sale, and Defendants’ cross motion for an order vacating this Court's prior award of summary judgment to Plaintiff and dismissing the complaint:
Notice of Motion — Affirmation / Exhibits — Affidavit 1-3
Notice of Cross Motion — Affirmation / Exhibits -- Affidavit 4-6
Affirmation in Opposition and Further Support / Exhibits 7
Reply Affirmations (2) 8-9
Sur-Reply Affirmation / Exhibits 10
Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:
This is a residential mortgage foreclosure action. Plaintiff HSBC Bank USA, N.A. moves for a Judgment of Foreclosure and Sale. Defendants cross move based on the newly enacted Foreclosure Abuse Prevention Act (FAPA) for dismissal on the purported ground that Plaintiff's action is barred by the Statute of Limitations. THE COURT'S PRIOR ORDER
In a Decision and Order dated October 26, 2022, prior to the enactment of FAPA, the Court granted Plaintiff's motion for summary judgment and an order of reference and rejected Defendants’ Statute of Limitations defense. Regarding the Statute of Limitations, the Court therein wrote:
The statute of limitations governing mortgage foreclosure actions is six (6) years.
See, CPLR § 213(4) ; Lubonty v. U.S. Bank, N.A., 34 N.Y.3d 250, 261, 116 N.Y.S.3d 642, 139 N.E.3d 1222 (2019). Where the mortgage debt is payable in installments, a separate cause of action accrues for each unpaid installment, and the limitations period begins to run on the date each installment becomes due. See, Wells Fargo Bank, N.A v. Cohen, 80 A.D.3d 753, 754, 915 N.Y.S.2d 569 (2d Dept. 2011). However, once a mortgage debt is accelerated, the entire amount becomes due and the statute of limitations begins to run on the entire debt (see, EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 [2d Dept. 2001] ), and continues to run on the entire debt unless and until the acceleration is revoked within the limitations period. See, Freedom Mortgage Corp. v. Engel, 37 N.Y.3d 1, 146 N.Y.S.3d 542, 169 N.E.3d 912 (2021).
The relevant procedural history of this action is as follows.
A prior foreclosure action was commenced on January 18, 2013. The complaint therein alleged that Defendants had defaulted as of July 1, 2010 and demanded the entire amount due under the mortgage. This demand constituted an acceleration of the mortgage debt; indeed, a demand for the entire amount due under a mortgage upon the mortgagor's default is the very definition of an acceleration of a debt otherwise payable in installments. Contrary to Defendants’ suggestion, no express statement of an "election" to "accelerate" was required. As per the Court of Appeals’ decision in Freedom Mortgage Corp. v. Engel, supra , then, the voluntary discontinuance of the 2013 action by stipulation dated March 22, 2016 constituted a timely "revocation" of the acceleration effectuated by the complaint in that action. See, id. At that point, the statute of limitations continued to run with respect Defendants’ default on individual monthly installment payments due but ceased to run with respect to the
entire mortgage debt.
A second foreclosure action was commenced on March 30, 2018. Under the applicable six (6) year statute of limitations, this action was timely interposed with respect to any default occurring after March 30, 2012. The 2018 action was dismissed without prejudice by court order dated December 21, 2020. However, the grounds for dismissal were such that Plaintiff was entitled to invoke the savings provision of CPLR § 205(a), which provides that:
the plaintiff may commence a new action upon the same transaction within six months after the termination [of the prior action] provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.
The Complaint in the present action was thereafter duly filed on June 11, 2021 and served on Defendants on June 17, 2021 — all within the six-month period prescribed by Section 205(a). Per CPLR § 205(a), then, the present action is in effect deemed to have been interposed as of March 30, 2018, such that it is timely with respect to all defaults occurring after March 30, 2012. Inasmuch as the default date alleged in the present Complaint is April 1, 2012, the Plaintiff's claim is in all respects timely interposed.
(Decision and Order dated October 26, 2022, pp. 3-4).
DEFENDANTS’ MOTION
Defendants contend that FAPA has upended this Court's October 26, 2022 ruling on the Statute of Limitations in two respects.
First, Defendants assert that inasmuch as it was the Legislature's expressly stated purpose in FAPA to overrule the Court of Appeals’ decision in Freedom Mortgage Corp. v. Engel, supra , this Court's determination, predicated on Engel , that "the voluntary discontinuance of the 2013 action by stipulation dated March 22, 2016 constituted a timely ‘revocation’ of the acceleration effectuated by the complaint in that action" cannot be sustained. Assuming arguendo that Defendants are correct in that regard, they nevertheless concede that the 2018 foreclosure action was timely commenced. Although the 2018 action was subsequently dismissed without prejudice by court order dated December 21, 2020, this Court ruled that the present action was thereafter timely commenced pursuant to CPLR § 205(a) because the summons and complaint were duly filed on June 11, 2021 and served on Defendants on June 17, 2021 — all within the six months following dismissal of the 2018 action, as prescribed by Section 205(a).
Secondly, then, Defendants assert that the Court's CPLR § 205(a) ruling cannot be sustained because FAPA replaced Section 205(a) with CPLR § 205-a. FAPA altered the Section 205(a) "savings provision" in multiple respects, but only one change is pertinent to the issue herein presented: while CPLR § 205(a) in 2021 required that service of process be " effected " within the specified six-month extension period, CPLR § 205-a now requires that service of process be " completed " within that six-month period.
Under either statute, service of process was timely made upon defendant Walid Besharat via CPLR § 308(1) by personal delivery of the summons and complaint on June 17, 2021, four days prior to the expiration of the six-month statutory period. Service of process was that same day "effected" on defendant Cindy Besharat via CPLR § 308(2) by delivery of the summons and complaint to her husband, Walid Besharat, and by mailing thereof to her home. Service upon Ms. Besharat was therefore timely under CPLR § 205(a), even though per Section 308(2) it was not "completed" until July 1, 2021 (ten days after the filing of the affidavit of service on June 21, 2021), after the close of the six-month window. See, U.S. Bank National Ass'n v. McLean, 209 A.D.3d 792, 794, 176 N.Y.S.3d 665 (2d Dept. 2022) ; Best Global Alternative, Ltd. v. American Storage & Transport, Inc., 68 Misc.3d 479, 480-484, 124 N.Y.S.3d 896 (Sup. Ct. Nassau Co. 2020) ; Siegel & Connors, NY Prac. § 52 (6th ed. 2018). Cf. contra, Roth v. Syracuse Hous. Auth., 2002 WL 31962630 (Sup. Ct. Onondaga Co., July 17, 2002), aff'd 306 A.D.2d 921, 760 N.Y.S.2d 377 (4th Dept. 2003), lv denied 1 N.Y.3d 507, 776 N.Y.S.2d 223, 808 N.E.2d 359 (2004). However, since FAPA / CPLR § 205-a now requires that service be " completed ", not just " effected ", within the six-month extension period, the application of Section 205-a here would render service upon Ms. Besharat untimely, retroactively deprive Plaintiff of the benefit of the Section 205(a) savings provision, and thus retroactively erect a statute of limitations bar against a claim that under the law prevailing when it was made was timely interposed. On that ground, Defendants seek dismissal of Plaintiff's mortgage foreclosure action.
In the first instance, then, the Defendants’ motion turns on two narrow issues:
• Did the Legislature intend that the procedural requirement of FAPA / CPLR § 205-a that service of process be "completed", as opposed to "effected", within the specified six-month extension period be applied retroactively to proceedings conducted in 2021?
• If so, would the retroactive imposition of CPLR § 205-a procedural requirements to erect a statute of limitations bar against a claim that was timely under the law prevailing when it was interposed pass constitutional muster?
IS CPLR § 205-a INTENDED TO BE RETROACTIVELY APPLIED?
In Regina Metropolitan Co., LLC v. N.Y.S. Div. of Housing and Community Renewal, 35 N.Y.3d 332, 130 N.Y.S.3d 759, 154 N.E.3d 972 (2020), rearg denied 35 N.Y.3d 1079, 130 N.Y.S.3d 426, 154 N.E.3d 12 (2020), the Court of Appeals provided a comprehensive framework for analyzing issues pertaining to the retroactivity of legislation. On the question whether, as a matter of statutory interpretation, the Legislature intended a newly enacted statute to be retroactively applied, the Court of Appeals’ teaching in Regina was beautifully distilled by the Fourth Department in Ruth v. Elderwood at Amherst, 209 A.D.3d 1281, 175 N.Y.S.3d 811 (4th Dept. 2022). The Court wrote:
When conducting a retroactivity analysis, a court must first assess whether applying the new law to conduct that occurred prior to its enactment "truly implicates the concerns historically associated with retroactive application of new legislation" ( [Regina ], 35 N.Y.3d 332, 365 [130 N.Y.S.3d 759, 154 N.E.3d 972] ). In that regard, "application of a new statute to conduct that has already occurred may, but does not necessarily, have ‘retroactive’ effect upsetting reliance interests and triggering fundamental concerns about fairness" ( id. ). In determining whether legislation has retroactive effect, " ‘the court must ask whether the new provision attaches new legal consequences to events completed before its enactment’ "
(
American Economy Ins. Co. v. State of New York, 30 N.Y.3d 136, 147 [65 N.Y.S.3d 94, 87 N.E.3d 126] [2017] ).
"A statute has retroactive effect if ‘it would impair rights a party possessed when [the party] acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed,’ thus impacting ‘substantive’ rights" ( [Regina ], 35 N.Y.3d at 365 [130 N.Y.S.3d 759, 154 N.E.3d 972] ; see Landgraf v. USI Film Prods., 511 U.S. 244, 278-280 [114 S.Ct. 1483, 128 L.Ed.2d 229] [1994] ). Therefore, "the extent of a party's liability, in the civil context as well as the criminal, is an important legal consequence’ in determining retroactivity" ([ Regina ]. 35 N.Y.3d at 367 [130 N.Y.S.3d 759, 154 N.E.3d 972] ). "On the other hand, a statute that affects only ‘the propriety of prospective relief’ or the nonsubstantive provisions governing the procedure for adjudication of a claim going forward has no potentially problematic retroactive effect even when the liability arises from past conduct" ( id. at 365 [130 N.Y.S.3d 759, 154 N.E.3d 972] ).Where legislation, "if applied to past conduct, would impact substantive rights and have retroactive effect, the presumption against retroactivity is triggered" ( id. at 370 [130 N.Y.S.3d 759, 154 N.E.3d 972] ).
When the presumption is triggered, "a statute is presumed to apply only prospectively" ( id. ). "This ‘deeply rooted’ presumption against retroactivity is based on ‘[e]lementary considerations of fairness [that] dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly’ " ( id. ). "[C]areful consideration of retroactive statutes is warranted because ‘[t]he [l]egislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration’ and
‘[i]ts responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals’ " ( id. ).
"In light of these concerns, [i]t takes a clear expression of the legislative purpose to justify a retroactive application of a statute, which assures that [the legislative body] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits’ ( id. ); [cit.om.]. "The ultimate question, therefore, is
one of statutory interpretation: whether the legislature has expressed a sufficiently clear intent to apply the [legislation] retroactively" ( [Regina ], 35 N.Y.3d at 370 [130 N.Y.S.3d 759, 154 N.E.3d 972] ). "There is certainly no requirement that particular words be used — and, in some instances, retroactive intent can be discerned from the nature of the legislation" ( id. ). "But the expression of intent must be sufficient to show that the legislature contemplated the retroactive impact on substantive rights and intended that extraordinary result" ( id. at 370-371 [130 N.Y.S.3d 759, 154 N.E.3d 972] ).
Ruth v. Elderwood at Amherst, supra, 209 A.D.3d at 1284-86, 175 N.Y.S.3d 811.
A. Retroactive Application of CPLR § 205-a Would Impact Plaintiff's Substantive Rights
Here, application of the newly enacted CPLR § 205-a to the events surrounding the recommencement of Plaintiff's mortgage foreclosure action in 2021 plainly has retroactive effect upsetting reliance interests and triggering fundamental concerns about fairness. Its requirement that service of process be "completed" (not just "effected") within the six-month statutory extension period attaches new legal consequences to events completed before its enactment -- imposing a new duty with respect to a completed transaction and impairing Plaintiff's rights by rendering untimely a claim that was timely commenced under the law prevailing when Plaintiff acted — thus impacting Plaintiff's substantive rights.
In Gilbert v. Ackerman, 159 N.Y. 118 (1899), the Court of Appeals held:
There is no question as to the power of the legislature to pass or to shorten statutes of limitation. A party has no more a vested interest in the time for the commencement of an action than he has in the form of the action. The only restriction upon the legislature in the enactment of statutes of limitation is that a reasonable time be allowed for suits upon causes of action theretofore existing . Rexford v. Knight, 11 N.Y. 308 ; People v. Turner, 117 N.Y. 227 The question of reasonableness, naturally and primarily, is with the legislature; and when the question is brought before the court the surrounding circumstances are regarded in determining whether the legislature, in prescribing a period of limitation, has erred to the prejudice of substantial rights. The right possessed by a person of enforcing
his claim against another is property; and if a statute of limitations, acting upon that right, deprives the claimant of a reasonable time within which suit may be brought, it violates the constitutional provision that no person shall be deprived of property without due process of law.
Gilbert, supra, 159 N.Y. at 124 (emphasis added). See, Merz v. Seaman, 265 A.D.2d 385, 388-389, 697 N.Y.S.2d 290 (2d Dept. 1999) (statute effective "immediately" "cannot be applied retroactively to dismiss an action that was viable at the time it was filed. Such a result would impair vested rights and violate due process"); Ruffolo v. Garbarini & Scher, P.C., 239 A.D.2d 8, 12, 668 N.Y.S.2d 169 (1st Dept. 1998) (same); Alston v. Transport Workers Union of Greater New York, 225 A.D.2d 424, 425, 639 N.Y.S.2d 359 (1st Dept. 1996) (same, citing Gilbert, supra ). See also, People v. Cohen, 245 N.Y. 419, 421-422, 157 N.E. 515 (1927) ("statute of limitations intended as a retrospective law must give a person reasonable time to enforce a remedy available to him before the bar of the statute will apply"); Halsted v. Silberstein, 196 N.Y. 1, 15 (1909) (same); Parmenter v. State of New York, 135 N.Y. 154 (1892) ; Reid v. Board of Albany County Supervisors, 128 N.Y. 364, 28 N.E. 367 (1891).
CPLR § 205-a did not literally shorten the statute of limitations for mortgage foreclosure actions. However, by requiring that service of process be "completed" and not just "effected" within the six-month extension period, it effectively shortened the period for complying with an essential condition for invoking the six-month "savings provision" and preserving the action from a statute of limitations bar. Accordingly, the principles articulated in Gilbert v. Ackerman and its progeny apply. As the First Department observed in Bloch v. Schwartz, 266 A.D. 188, 41 N.Y.S.2d 837 (1st Dept. 1943) :
The present statute does not in terms establish a statute of limitations. It rather sets up a definite short period within which notification of the forged or unauthorized endorsement must be given to the drawee bank. In other words, it creates a condition to a claim of ultimate liability. Whenever the legislature limits the time for commencing a cause of action or limits the time to perform some condition precedent to starting an action, so far as the party affected is concerned, a valuable right is being restricted. Hence, a reasonable
time in which to act must be provided. To give this statute retroactive effect would deprive plaintiff of his cause of action because notice was not given at a time when no notice was required. That the legislature never intended such result seems obvious.
Bloch v. Schwartz, supra, 266 AD at 190-191, 41 N.Y.S.2d 837 (emphasis added).
Thus, the circumstances here present give rise to a presumption against retroactivity based on elementary considerations of fairness dictating that individuals should have an opportunity to know what the law is and to conform their conduct accordingly. See, Regina Metropolitan Co., LLC v. N.Y.S. Div. of Housing and Community Renewal, supra ; Ruth v. Elderwood at Amherst, supra . The question, then, becomes whether the Legislature expressed a clear intent to apply the legislation retroactively, i.e., an expression thereof sufficient to show that it contemplated the retroactive impact on substantive rights and intended that extraordinary result. See, id.
B. The Legislature's Directive That FAPA Take Effect "Immediately" and Apply to Foreclosure Actions in Which Final Judgment Has Not Been Enforced Is Insufficient to Rebut the Presumption Against Retroactivity
FAPA § 10 provides that "[t]his act shall take effect immediately and shall apply to all actions commenced on [a note and mortgage] in which a final judgment of foreclosure and sale has not been enforced." The legislative history reveals that FAPA was enacted to remediate what the Legislature regarded as abusive litigation tactics by lenders, particularly in manipulating statutes of limitation to their advantage and to the detriment of homeowners. See, New York State Senate Introducer's Memorandum in Support, S5473D; New York State Assembly Memorandum in Support of Legislation, A7737B. The Assembly Memorandum further states that "[t]he gravity of the aforementioned problem, and the legislature's determination to remedy same, is illustrated by the determination of the legislature in passing this bill to apply to all [mortgage foreclosure] actions in which a final judgment of foreclosure and sale has not yet been enforced."
However, FAPA nowhere states that the law is to be applied "retroactively" and, construed in light of existing law, the directive that a remedial statute be applied immediately to pending actions cannot reasonably be taken to signify a legislative intent that new procedural requirements be retroactively enforced so as to destroy substantive rights already accrued. "The procedure in an action is governed by the law regulating it at the time any question of procedure arises." Matter of Clayton v. Clement, 33 N.Y.2d 386, 390, 353 N.Y.S.2d 173, 308 N.E.2d 690 (1974) (quoting Lazarus v. Metropolitan El. Ry. Co., 145 N.Y. 581, 585 [1895] ). Thus, where a matter is already pending, a legislatively mandated change in procedure is generally "applicable to the litigation in future steps and stages," but "inapplicable unless in exceptional conditions, where the effect is to reach backward, and nullify by relation the things already done." Simonson v. International Bank, 14 N.Y.2d 281, 289, 251 N.Y.S.2d 433, 200 N.E.2d 427 (1964) (quoting Berkovitz v. Arbib & Houlberg, 230 N.Y. 261, 270, 130 N.E. 288 [1921] ). Courts are "not to presume a willingness that rights already accrued through actions lawfully initiated are to be divested or impaired." Berkovitz v. Arbib & Houlberg, supra, 230 N.Y. at 273, 130 N.E. 288. Summarizing the law in Wade v. Byung Yang Kim, 250 A.D.2d 323, 681 N.Y.S.2d 355 (2d Dept. 1998), the Second Department wrote:
Although "as a general rule, legislation must be construed as prospective only unless the language of the statute, expressly or by implication, requires retroactive application, there is an exception for remedial statutes, which are those intended to correct imperfections in prior law" ( Matter of Hynson [Amer. Motors Sales Corp. — Chrysler Corp.], 164 A.D.2d 41, 48 [561 N.Y.S.2d 589 (1990)] [cit.om.]. "In such circumstances, the statute (or an amendment thereto) is construed to be retroactive and *** is deemed to apply to pending matters" ( Auger v. State, 236 A.D.2d [177], 179 [666 N.Y.S.2d 760 (1997)] ; [cit.om.]). However, procedural statutes "may not retroactively destroy rights already accrued" (McKinney's Consolidated Laws of NY, § 55, supra, at 118). Accordingly, "when it is said that procedural statutes are generally retroactive, what is really meant is that they apply to pending proceedings, and even with respect to such proceedings, they only affect procedural steps taken after their enactment" ( Charbonneau v. State of New York, 148 Misc.[2d] 891, 895, 561 N.Y.S.2d 876 (1990), affd. 178 A.D.2d 815 [577 N.Y.S.2d 534 (1991)], affd. 81 N.Y.2d 721 [ 593 N.Y.S.2d 758, 609 N.E.2d 111 (1992)] ; see, McKinney's Consolidated Laws of NY, Book 1, Statutes § 55, supra ; Simonson v. International Bank, 14 N.Y.2d 281, 289-290 [ 251 N.Y.S.2d 433, 200 N.E.2d 427 (1964)] ).
Wade v. Byung Yang Kim, supra, 250 A.D.2d at 325, 681 N.Y.S.2d 355 (emphasis added).
In Wade v. Byung Yank Kim, supra , the Second Department addressed the retroactivity of the amendment to CPLR § 3211[e], which provided that any objection to improper service of process is waived unless, having raised the objection in a pleading the defendant does not move for judgment on that ground within 60 days. The Court observed that "to hold this amendment to CPLR 3211[e] applicable to all pending actions without any limitation would be ‘unfair’ since it would trigger the ‘waiver on objections put into place long ago in conformity with all existing procedural requirements’ [cit.om.] .to avoid injustice, we hold that the subject amendment to CPLR 3211[e] is retroactive but the starting time of the requisite 60-day period in pending actions is deemed to be the amendment's effective date." See, id., 250 A.D.2d at 325-326, 681 N.Y.S.2d 355.
In view of the foregoing, this Court believes that FAPA § 10 is insufficient to overcome the presumption against retroactive enforcement of procedural amendments so as to destroy rights already accrued via compliance with pre-existing procedural requirements. However, assuming arguendo that the stridency of the legislative sponsors’ attacks on mortgage lenders and the legislative determination to remedy alleged abuses evince an intent that FAPA's remedial elements be retroactively enforced despite manifest harm to lenders’ substantive rights, that would still not justify a conclusion that the legislature intended retroactivity in the circumstances presented here.
The Senate Sponsor's Memorandum identifies and discusses in detail four (4) specific remedial elements incorporated in newly enacted CPLR § 205-a. CPLR § 205(a) was modified, and/or clarified, to provide that:
• The six-month extension afforded the lender to recommence a foreclosure action following dismissal is unavailable where the prior action was dismissed for any form of neglect or violation of court rules. The statutory requirement that the judge specify the conduct constituting neglect was eliminated.
• Only the original plaintiff (or party acting on its behalf), and not that plaintiff's assignee or successor-in-interest, may benefit from the six-month savings provision.
• The benefit of the six-month savings provision applies only as against the original defendant.
• The original plaintiff may receive no more than one six-month extension.
However, none of those remedial elements of CPLR § 205-a are at issue in this case. Further-more, there is in the legislative history no statement concerning the purpose of the statutory modification at issue here, i.e., that whereas CPLR § 205(a) in 2021 required that service of process be " effected " within the specified six-month grace period, CPLR § 205-a now requires that service of process be " completed " within that six-month period. There is no indication why that statutory language was changed, no indication of any remedial purpose. Indeed, the legislative history reflects no consciousness on the part of the Legislature of any change in that regard. In discussing the point that newly enacted CPLR § 205-a applies only as to the original defendant in a foreclosure action, the Senate Sponsor's Memorandum states:
This specification clarifies that the plaintiff must both timely file and effectuate service upon not just any defendant, but the original defendant, within the six-month extended period. (emphasis added)
In this context, the terms "effect" and "effectuate" are as a general matter used interchangeably to signify the physical means by which a defendant is given notice of a summons and complaint. In contradistinction to the statutory term "effect", the CPLR employs the term "complete" as a term of art to specify the time from which the defendant's time to answer or appear is computed. See, CPLR § 308 (2, 4). Thus, the Senate Sponsor's use of the term "effectuate" in lieu of the term "complete" in discussing CPLR § 205-a reflects obliviousness to the change at issue here.
Consequently, there is no basis whatsoever for concluding that the Legislature contemplated the retroactive impact on lenders’ rights of conditioning the applicability of the six-month statute of limitations savings provision on a lender's having "completed" (instead of "effected") service of process within the six-month period following a previous dismissal. The Court accordingly concludes as a matter of statutory interpretation that this aspect of FAPA is not to be applied retroactively. See, Regina Metropolitan Co., LLC v. N.Y.S. Div. of Housing and Community Renewal, supra ; Ruth v. Elderwood at Amherst, supra . However, if the Court's analysis is incorrect, and the Legislature intended FAPA in its entirety to be retroactively applied, the Court further concludes, for the reasons shown hereinbelow, that retroactive application of CPLR § 205-a in the circumstances here presented would indubitably violate the Plaintiff's fundamental due process rights.
THE CONSTITUTIONAL DUE PROCESS VIOLATION
[A]n unfair retroactive assessment of liability upsets settled expectations, and it thereby undermines a basic objective of law itself.
To find that the Due Process Clause protects against this kind of fundamental unfairness is to read the Clause in light of a basic purpose: the fair application of law, which purpose harkens
back to the Magna Carta
Regina Metropolitan Co., LLC v. N.Y.S. Div. of Housing and Community Renewal, supra , 35 N.Y.3d at 388, 130 N.Y.S.3d 759, 154 N.E.3d 972 (quoting Eastern Enterprises v. Apfel, 524 U.S. 498, 557, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) [Breyer, J., dissenting]). The Court of Appeals’ decision in Regina supplies the analytical framework for assessing the constitutionality of retroactive legislation in light of the Due Process Clause.
The Regina Court wrote:
To comport with the requirements of due process, retroactive application of a newly enacted provision must be supported by "a legitimate legislative purpose furthered by rational means" ( American Economy, 30 N.Y.3d at 157-158 [ 65 N.Y.S.3d 94, 87 N.E.3d 126], citing General Motors Corp. v. Romein, 503 U.S. 181, 191 [112 S.Ct. 1105, 117 L.Ed.2d 328] [1992] ). Of course, as with prospective elements of legislation, legislative direction concerning the scope of a statute carries a presumption of constitutionality, and the party challenging that direction bears the burden of showing the absence of a rational basis justifying retroactive application of the statute [cit.om.]. Nevertheless, the Supreme Court has made clear that "retroactive legislation does have to meet a burden not faced by [purely prospective] legislation," which is satisfied when "the retroactive application of the legislation is itself justified by a rational legislative purpose" ( Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 [ 104 S.Ct. 2709, 81 L.Ed.2d 601] [1984] [emphasis added]).
Because "[r]etroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation" ( Romein, 503 U.S. at 191 [ 112 S.Ct. 1105] ), "the justification for [prospective legislation] may not suffice for [the retroactive aspects]" ( R.A. Gray & Co., 467 U.S. at 730 ). We have suggested that, in order to comport with due process, there must be a "persuasive reason" for the "potentially harsh" impacts of retroactivity
( Holly S. Clarendon Trust v. State Tax. Comm., 43 N.Y.2d 933, 935 [403 N.Y.S.2d 891, 374 N.E.2d 1242] [1978] ; [cit.om.] ...
...
In determining whether retroactive application of a statute is supported by a rational basis, the relationship between the length of a retroactivity period and its purpose is critical. Generally, there are two types of retroactive statutes that courts have found to be constitutional: those employing brief,
defined periods that function in an administrative manner to assist in effectuating the legislation, and statutory retroactivity that — even if more substantial — is integral to the fundamental aim of the legislation.
Regina, supra , 35 N.Y.3d at 375, 376, 130 N.Y.S.3d 759, 154 N.E.3d 972. However, the Regina Court noted that "there are limits on retroactive imposition of liability even when it is related to a rational statutory goal." Id., at 382, 130 N.Y.S.3d 759, 154 N.E.3d 972. On the specific matter before it, the Court concluded:
The Legislature is entitled to impose new burdens and grant new rights in order to address societal issues and, in enacting the HSTPA, it sought to alleviate a pressing affordable housing shortage that it rationally deemed warranted action. But there is a critical distinction for purposes of due process analysis between prospective and retroactive legislation. As the Supreme Court has observed, retroactive legislation that reaches "particularly far" into the past and that imposes liability of a high magnitude relative to impacted parties’ conduct raises "substantial questions of fairness" ( Eastern Enters., 524 U.S. at 534 [ 118 S.Ct. 2131] ). In the retroactivity context, a rational justification is one commensurate with the degree of disruption to settled, substantial rights and, in this instance, that standard has not been met.
Id., 35 N.Y.3d at 385-386, 130 N.Y.S.3d 759, 154 N.E.3d 972 (emphasis added).
The United States Constitution and the New York State Constitution both provide that no person shall be deprived of property without due process of law. U.S. Const. Amend. XIV ; NY Const. Art. I, § 6. "The right possessed by a person of enforcing his claim against another is property" ( Gilbert v. Ackerman, supra ), and applying a statute effective "immediately" retroactively to dismiss an action that was viable at the time it was filed impairs vested rights and violates due process. See, id. ; People v. Cohen, supra ; Halsted v. Silberstein, supra ; Parmenter v. State of New York, supra ; Reid v. Board of Albany County Supervisors, supra ; Merz v. Seaman, supra ; Ruffolo v. Garbarini & Scher, P.C., supra ; Alston v. Transport Workers Union of Greater New York, supra (collecting cases); Bloch v. Schwartz, supra. (See above, p. 7)
Applying newly enacted CPLR § 205-a as Defendants would have the Court apply it here raises "substantial questions of fairness" in that it would reach back into the past to "impose[ ] liability of a high magnitude" — the complete loss of Plaintiff's vested right to enforce its claim on the note and mortgage — "relative to [its] conduct" — timely "effecting" service on Mrs. Besharat under the law prevailing at the time instead of "completing" service in accordance with the requirements of a subsequently enacted law of which it neither had nor could have had knowledge. See, Eastern Enters. v. Apfel, supra, 524 U.S. at 534, 118 S.Ct. 2131 ; Regina Metropolitan Co., LLC v. N.Y.S. Div. of Housing and Community Renewal, supra , 35 N.Y.3d at 385-386, 130 N.Y.S.3d 759, 154 N.E.3d 972. So patently unfair an application of law could survive constitutional scrutiny, if at all, only upon a "rational justification commensurate with the degree of disruption to settled, substantial rights." See Regina, supra, at 386, 130 N.Y.S.3d 759, 154 N.E.3d 972.
For present purposes, the Court will assume that the FAPA reforms are supported by a legitimate legislative purpose to correct "abusive litigation tactics" by mortgage lenders. The Court further assumes, without deciding, that retroactive application of statutory remedial measures designed to counteract the cited abuses may "itself [be] justified by a rational legislative purpose" and "integral to the fundamental aim of the legislation." See Regina, supra. However, there is no perceptible connection between the amendment of the CPLR § 205(a) "savings provision" to require that service of process be "completed" (as opposed to "effected") within the six-month extension period and any "abusive litigation tactic" or remedy therefor. As is demonstrated above (pp. 11-12), FAPA's Senate sponsor wholly ignored this aspect of newly enacted CPLR § 205-a in discussing the remedial amendments incorporated in that statute. Even if some after-the-fact theoretical connection might be posited, it could under no circumstances be "commensurate with the degree of disruption to settled, substantial rights" involved in depriving the Plaintiff of the valuable property right to enforce its claim on the note and mortgage in violation of "elementary considerations of fairness [that] dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly." See Regina, supra, 35 N.Y.3d at 370, 130 N.Y.S.3d 759, 154 N.E.3d 972 (quoting Landgraf v. USI Film Prods., supra, 511 U.S. at 265, 114 S.Ct. 1483 ).
The Court's holding is a narrow one, confined by the factual circumstances presented in this case. If and to the extent that the Legislature intended CPLR § 205-a to apply retroactively to deprive a mortgagee of the benefit of the pre-existing CPLR § 205(a) "savings provision" on account of its having failed to "complete" service of process on the mortgagor in accordance with the after-enacted requirements of Section 205-a, such retroactive application of the statute would deprive the mortgagee of a vested right to enforce its claim on the note and mortgage against the mortgagor in violation of its federal and state constitutional right to due process of law.
It is therefore
ORDERED, that Defendants’ cross-motion is denied, and it is further
ORDERED, that Plaintiff's motion is granted, and the proposed Judgment of Foreclosure and Sale is issued herewith.
The foregoing constitutes the decision and order of the Court.