In today’s Blog, we revisit the requirement in RPAPL 1351(1) that a foreclosure sale occur within 90 days of the date of the judgment of foreclosure and sale.

By: Jonathan H. Freiberger Today’s article relates to CPLR 321(c) , a topic we have addressed before < here =">here</a>"> and < here =">here</a>"> . As previously discussed in this BLOG, once an attorney appears and becomes the attorney of record, the client is free to change counsel by filing with the clerk, a substitution of counsel stipulation, which must also be served on “the attorneys for all parties in the action or, if a party appears without an attorney, to the par

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 a applicable statute of limitations expires during the pendency of an action, under certain circumstances, CPLR 205(a) permits the plaintiff t

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently address issues involving mortgage foreclosure, generally, and notices of pendency, specifically. Today’s article involves both issues with a sprinkle of sanctions. By way of background, and as explained in prior articles, a notice of pendency (or lis pendens ) is a provisional remedy available to litigants seeking a judgment that affects title to real property. 5303 Realty Corp. v. O&Y Equity Corp. , 64 N.

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently address issues involving mortgage foreclosure and usury. Today’s article involves both issues. By way of background, and as explained in prior articles, usury statutes were developed to “protect desperately poor people from the consequences of their own desperation.” Seidel v. 18East 17 th Street Owners, Inc. , 79 N.Y.2d 735, 740 (1992) (citations and internal quotation marks omitted). “To successfully r

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently address issues involved with mortgage foreclosure. Because of, inter alia , the frequency with which mortgages are bought, sold, assigned and otherwise transferred, one issue that frequently arises in mortgage foreclosure actions is whether the plaintiff has standing to commence its action. Briefly stated, “ tanding involves a determination of whether the party seeking relief has a sufficiently cognizabl

By: Jonathan H. Freiberger Many times, remedies for the breach of a contract other than monetary damages are necessary to make a plaintiff whole. One such remedy is specific performance. The remedy of specific performance “will not be ordered where money damages would be adequate to protect the expectation interests of the injured party.” Sokoloff v. Harriman Estates Development Corp. , 96 N.Y.2d 409, 415 (2001) (citations and internal quotation marks omitted). Specific perf

By: Jonathan H. Freiberger Today’s BLOG article concerns CPLR 306-b . As previously explained in prior articles, actions or proceedings (collectively, “Actions”) are commenced by filing the initiatory papers with the appropriate county clerk. CPLR 304(a) . Once the Action is commenced, the plaintiff is required to serve the initiatory papers on the defendant, and generally such service must occur within 120 days after the Action is commenced. CPLR 306-b. “If service is not

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently write about issues relating to mortgage foreclosure. We have also written numerous articles relating to the recently enacted FAPA. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . Today’s BLOG article relates to Wells Fargo Bank, N.A. v. Edwards , a case decided by the Appellate Division, Second Department, on October 30, 202

By: Jonathan H. Freiberger Today’s BLOG article relates to Reverse Mortgage Solutions, Inc. v. Miglucci , a mortgage foreclosure action decided by the Appellate Division, Third Department, on October 17, 2024. The Court in Miglucci determined that the accrual date of a cause of action for the foreclosure of a reverse mortgage generally accrues upon the death of the borrower. In 2008, the Miglucci borrower borrowed money from the lender and secured her repayment obligations

By: Jonathan H. Freiberger A notice of pendency (or lis pendens ) is a provisional remedy available to litigants seeking a judgment that affects title to real property. 5303 Realty Corp. v. O&Y Equity Corp. , 64 N.Y.2d 313 (1984). The purpose of a notice of pendency is to put defendants and the world on notice of the full scope of the rights claimed by plaintiffs to defendants’ real property. Sjogren v. Land Assoc., LLC , 223 A.D.3d 963, 965 (3 rd Dep’t 2024). Notices of pen

By: Jonathan H. Freiberger Because litigation can be a long and drawn-out process, it is not uncommon for litigants to die during the pendency of a lawsuit. In today’s BLOG article, we address the problems that may arise when a litigant dies. This BLOG has previously addressed this issue. See, e.g ., < here =">here</a>"> and < here =">here</a>"> . As previously noted in prior BLOG articles, in this context CPLR § 1015 – Substitution Upon Death – is instructive and provides:

Today’s BLOG article relates to fraudulent concealment, caveat emptor and justifiable reliance when purchasing real property.

By: Jonathan H. Freiberger Sometimes this BLOG takes an in-depth look at recently decided cases from New York’s appellate courts; other times it simply reports on cases with an interesting holding. Today’s BLOG reflects the latter. Bank of New York Mellon v. Levinson , is a mortgage foreclosure action decided by the Appellate Division, Second Department, on August 14, 2024. The defendant/borrower in Bank of New York , borrowed $1.2 million from the lender and secured his repa

By Jonathan H. Freiberger In situations where the statute of limitations expires during the pendency of an action, under certain circumstances, CPLR 205 (a) 1 permits the plaintiff to commence a new action if the original action is dismissed but was timely commenced. 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 c

By Jonathan H. Freiberger Whether a non-existent corporation can enter into a contract is an interesting question. The interesting answer is that sometimes it can. Pursuant to BCL § 403 , a corporation’s existence begins “ pon the filing of the certificate of incorporation by the department of state.” Generally, “a nonexistent entity cannot acquire rights or assume liabilities, a corporation which has not yet been formed normally lacks capacity to enter into a contract.” Ru

By Jonathan H. Freiberger This BLOG has written numerous times on issues related to statutes of limitation in mortgage foreclosure actions. See, e.g., [ here ], [ here ], [ here ], [ here ], [ here ], [ here ], [ here ], [ here ] and [ here ]. As previously described in this BLOG an action to foreclose a mortgage is governed by a six-year statute of limitations. CPLR 213(4) . See also Fed. Nat. Mort. Assoc. v. Schmitt , 172 A.D.3d 1324, 1325 (2 nd Dep’t 2019). When

By Jonathan H. Freiberger Today we revisit CPLR 3215(c), a provision addressed several times by this Blog. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . By way of brief background, and as set forth in one of our prior Blogs, Rule 3215(c) of the New York Civil Practice Law and Rules provides, in pertinent part, that: If the plaintiff fails to take proceedings for the ent

By Jonathan H. Freiberger This BLOG has written numerous times on statutes of limitation issues in mortgage foreclosure actions. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . Briefly stated, and as has been stated previously in this BLOG, an action to foreclose a mortgage is governed by a six-year statute of limitations. CP

By Jonathan H. Freiberger For a variety of reasons, a party asserting a claim may choose to discontinue same. In such circumstances, CPLR 3217 , provides the mechanism to do so. [Eds. Note: this BLOG has addressed CPLR 3217 < here =">here</a>"> and < here =">here</a>"> .] CPLR 3217(a), which addresses situations where a party asserting a claim may voluntarily discontinue a claim without the need for a court order, permits the party to do so, inter alia : (1) by serving o