“Missed it by That Much” – CPLR 205-A and FAPA

• Posted on: Feb 21 2025

By: Jonathan H. Freiberger

Seasoned attorneys will get the reference in the title of this article to one of Maxwell Smart’s catch phrases from “Get Smart”, but most of the younger folks might not.[1] In any event, the phrase seems prescient in light of a nuanced FAPA related change to CPLR 205. As stated in prior BLOG articles, when an applicable statute of limitations expires during the pendency of an action, under certain circumstances, CPLR 205(a) permits the plaintiff to commence a new action if the original action is dismissed but was timely commenced.[2] CPLR 205(a) provides:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff … may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination 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. Where a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation. [Emphasis added.]

At the end of 2022, the Foreclosure Abuse Prevention Act (“FAPA”) went into effect.[3] FAPA amends certain provisions of the CPLR and other statutes to the extent they relate to, inter alia, residential mortgage foreclosure actions.[4] Among other things, FAPA’s provisions were designed to prevent lenders from circumventing statute of limitations problems in residential mortgage foreclosure actions by the simple expedient of accelerating and deaccelerating loans to restart the running of statutes of limitations. As part of FAPA, the Legislature enacted CPLR 205-A,[5] which addresses issues similar to those in CPLR 205(a), but specifically in the context of certain residential mortgage foreclosure actions. CPLR 205-A provides:

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 failure 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 twenty-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 original plaintiff … may commence a new action upon the same transaction or occurrence or series of transactions 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 plaintiff; and

2. in no event shall the original plaintiff receive more than one six-month extension. [Emphasis supplied.]

One subtle difference between CPLR 205(a) and 205-A (as indicated in the italicized language) is that CPLR 205-A requires service of process to be completed before a plaintiff receives the benefits of the statute. This issue was decisive in Deutsche Bank Nat. Trust Co. v. Zak, decided by the Appellate Division, Second Department, on February 19, 2025.

The lender in Zak commenced a mortgage foreclosure action on September 25, 2009. A second action was commenced on August 19, 2015, to foreclose the same mortgage. In 2017, the 2009 action was dismissed pursuant to CPLR 3216 for failure to prosecute. On July 17, 2018, the motion court granted the borrowers’ cross-motion to dismiss the complaint in the 2015 action due to the lender’s failure to comply with RPAPL 1304.[6] A new foreclosure action was commenced by the lender on December 14, 2018. Borrower 1 was served personally (CPLR 308(1)) on December 28, 2018. Borrower 2 was served on January 7, 2019, by delivering the summons and complaint to someone of suitable age and discretion (CPLR 308(2)) and the related affidavit of service was filed on January 9, 2019. Pursuant to CPLR 308(2), service was completed on January 19, 2018, ten days after the filing of the affidavit of service related to borrower 2.

In their answer to the 2018 action, the borrowers asserted a counterclaim to discharge the mortgage of record pursuant to RPAPL 1501(4).[7] The lender moved to dismiss the counterclaim and the borrowers cross-moved for summary judgment on the counterclaim and on statute of limitations grounds. Not persuaded by the lender’s argument that the 2018 action was timely commenced pursuant to CPLR 205(a), the motion court denied the lender’s motion and granted the borrowers’ cross-motion. The lender appealed.

The Court modified the motion court’s order and determined that the 2018 action was timely commenced as to borrower 1, but not borrower 2. After explaining the differences between CPLR 205(a) and 205-A, the Court reiterated that a crucial distinction between the two provisions is that with respect to CPLR 205-A, service of process must be completed within the relevant six-month period. As to the relevant time periods, the Court explained that “the mortgage debt was first accelerated, and the statute of limitations began to run, when the [lender] commenced the [2009] action on September 25, 2009. Thus, the statute of limitations expired six years later on September 25, 2015. The [2015] action was timely commenced on August 19, 2015, and the instant action was commenced on December 14, 2018, more than three years after the statute of limitations expired.” (Citation omitted.)[8]

The Court explained why the lender could proceed against borrower 1, but with respect to borrower 2, the lender “missed it by that much”:

Under the standard set forth in either CPLR 205(a) or CPLR 205-a, the action was timely insofar as asserted against [borrower 1]. Initially, contrary to the Supreme Court’s determination, a dismissal for failure to comply with RPAPL 1304 did not constitute a dismissal on the merits for the purposes of CPLR 205(a) and 205-a because the dismissal of a complaint for the failure to satisfy a condition precedent to suit is not a ‘final judgment upon the merits’ for the purposes of CPLR 205(a). Under CPLR 205(a) or 205-a, the six-month period to recommence the action ran from the date of entry of the order dismissing the [2015] action, which was July 17, 2018. [Borrower 1] was served personally on December 28, 2018, and service was effected and completed on that day pursuant to CPLR 308(1). Thus, the instant action was timely recommenced pursuant to either CPLR 205(a) or 205-a insofar as asserted against [borrower 1]….

With respect to [borrower 2], service was effected on January 7, 2019, pursuant to CPLR 308(2), which was within six months after the termination of the [2015] action. However, the affidavit of service was not filed until January 9, 2019, and service was thus completed 10 days later on January 19, 2019 (see CPLR 308[2]), which was 2 days after the six-month deadline to recommence the foreclosure action under CPLR 205-a. [Citations, internal quotation marks and brackets omitted.]

It should be noted that the motion practice before the motion court occurred prior to the enactment of FAPA but FAPA is to be retroactively. Thus, the Court also found that the lender’s challenge to the retroactive application of FAPA to be “without merit”.[9]

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] For the younger folks who missed out on some good television when there were only 5 channels to watch, follow the YouTube link to a relevant “Get Smart” clip.

[2] The purpose of CPLR 205(a) is briefly discussed [here] in a prior BLOG article.

[3] This BLOG has addressed issues related to FAPA. To find such articles please see the BLOG tile on our website and type “FAPA” in the “search” box.

[4] This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issues that may be of interest you.

[5] This Blog has written about CPLR 205 and the new 205-A. See, e.g., [here],[here] and [here].

[6] This BLOG has written numerous articles about RPAPL 1304. To find such articles, visit the “BLOG” tile on our website and enter “1304” in the “search” box.

[7] This BLOG has addressed issues related to RPAPL 1501(4). To find such articles please see the BLOG tile on our website and type “1501(4)” in the “search” box.

[8] This BLOG has written numerous articles about acceleration and deacceleration of residential mortgages. To find such articles, visit the “Blog” tile on our website and enter “accelerate,” “acceleration,” “deaccelerate” and/or “deacceleration” in the “search” box.

[9] This BLOG has written about the retroactive application of FAPA. See, e.g., [here], [here] and [here].