Summary
This Appellate Division, Second Department decision affirms the Supreme Court's dismissal of a plaintiff's complaint seeking to cancel and discharge a recorded mortgage under RPAPL 1501(4). The court held that because the underlying foreclosure action was merely administratively marked as dismissed rather than formally terminated by court order or stipulation, it remained pending. Consequently, the expiration of the statute of limitations had not occurred, which is a prerequisite for maintaining an RPAPL 1501(4) action. The appeal was therefore properly dismissed pursuant to CPLR 3211(a).
Topics
Practice areas
Questions Presented
- Whether a foreclosure action that was administratively marked dismissed but not formally dismissed remains pending for purposes of RPAPL 1501(4)
- Whether the trial court erred in granting the Bank’s motion to dismiss the plaintiff’s RPAPL 1501(4) action.
Holdings
- The foreclosure action was never actually dismissed and therefore remained pending, precluding the plaintiff’s RPAPL 1501(4) action.
- The trial court properly granted the motion to dismiss because the pending foreclosure action precluded the RPAPL 1501(4) action.
Key quotations
“Because the expiration of the statute of limitations is an essential element of an action pursuant to RPAPL 1501(4), the existence of a pending foreclosure action precludes a[n] RPAPL 1501(4) action.”
“The judge merely "note[s] the default on the record," but does not "enter an order," the action is "not actually dismissed."”
Factual background
In 2006 the plaintiff’s predecessor executed a mortgage on Queens real property, later assigned to LaSalle Bank, which merged into Bank of America in 2008. LaSalle initiated a foreclosure action that was administratively marked dismissed in 2014 after the Bank failed to appear, but the court never entered an order dismissing the action. The plaintiff acquired the property in 2022 and filed the RPAPL 1501(4) action in 2023. The Bank moved to dismiss the complaint, and the trial court granted that motion.
Procedural history
The plaintiff filed an action under RPAPL 1501(4) to cancel a mortgage. The Supreme Court, Queens County, granted the defendant’s motion to dismiss, finding the complaint barred because a pending foreclosure action existed. The appellant appealed that order.