The opinion
Carrano v U.S. Bank
2025 NY Slip Op 34052(U)
October 31, 2025
Supreme Court, Kings County
Docket Number: Index No. 518566/2020
Judge: Carolyn Walker-Diallo
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: KINGS COUNTY CLERK 10/31/2025 04:00 PM INDEX NO. 518566/2020
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 10/31/2025
At an IAS Term, Part FRP4, of the
Supreme Court of the State of New York,
held in and for the County of Kings, at
the Courthouse at 320 Jay Street,
Brooklyn, New York on the 31st day of
October 2025.
PRESENT:
HON. CAROLYN WALKER-DIALLO, J.S.C.
--------------------------------------------------------------- X
PATRICK L. CARRANO,
Plaintiff, Index No.: 518566/2020
- against -
DECISION/ORDER
U.S. BANK,
Defendant.
--------------------------------------------------------------- X
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion NYSCEF Doc. Nos. 46-58
Affirmation in Opposition NYSCEF Doc. Nos. 60-62
Affirmation in Reply NYSCEF Doc. Nos. 63-64
Motion Sequence #4
Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:
INTRODUCTION
Patrick L. Carrano (“Plaintiff”) moves for an Order: (i) granting summary judgment and
ancillary relief pursuant to CPLR 3212; (ii) barring Defendant from all claims to an estate, interest,
lien, or encumbrance of any sort in the subject premises at 110 East 3rd Street, Brooklyn, NY
1
[* 1]
FILED: KINGS COUNTY CLERK 10/31/2025 04:00 PM INDEX NO. 518566/2020
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 10/31/2025
11218 (“the premises”) in accordance with RPAPL Article 15; (iii) discharging the mortgage
purportedly held by Defendant and recorded against the premises, and ordering Defendant to
record a Satisfaction of Mortgage in the Kings County Clerk’s Office pursuant to RPAPL 15; and
(iv) awarding Plaintiff reasonable attorneys fees, costs, and disbursements in this action. U.S. Bank
(“Defendant”) opposes, and Plaintiff submits reply papers. For the reason set forth below,
Plaintiff’s motion for summary judgment is GRANTED in its entirety.
FACTUAL AND PROCEDURAL HISTORY
This action was commenced on October 1, 2020, seeking to discharge a time-barred
mortgage encumbering the premises pursuant to RPAPL 1501(4) to quiet title to the premises. Prior
to commencement of the instant action, Defendant’s predecessor-in-interest commenced an action
on November 9, 2006, under Index Number 34146/2006, entitled New Century Mtge. Corp. v.
Carrano (“first action”). The complaint in the first action expressly accelerated the loan,
demanding from Plaintiff the entirety of the sum secured by the mortgage.
The first action was discontinued by Order of the Honorable Martin M. Solomon dated
March 16, 2012, upon Defendant’s predecessor-in-interest’s application (“2012 Order”). See Order
of the Hon. Martin M. Solomon dated March 16, 2012, NYSCEF Doc. No. 54. Thereafter,
Defendant commenced a second action on July 21, 2017, under Index Number 514085/2017,
entitled U.S. Bank v. Carrano, seeking to foreclose on the same mortgage (“second action”). By
Order of the Honorable Noach Dear on October 22, 2018, the second action was dismissed as
barred by the statute of limitations. See Order of the Hon. Noach Dear dated October 22, 2018,
NYSCEF Doc. No. 76, at 2. Defendant then appealed the order to the Appellate Division, Second
Department. Subsequently, on September 16, 2020, the Appellate Division, Second Department,
affirmed the dismissal. See U.S. Bank v. Carrano, 186 A.D.3d 1449 (2d Dep’t 2020).
2
[* 2]
FILED: KINGS COUNTY CLERK 10/31/2025 04:00 PM INDEX NO. 518566/2020
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 10/31/2025
Plaintiff now moves for summary judgment in this action. Plaintiff argues that the mortgage
is unenforceable under the statute of limitations because the first action accelerated the mortgage
loan and the second action was dismissed as barred by the statute of limitations. Plaintiff also
argues that the Foreclosure Abuse Prevention Act (“FAPA”) precludes any argument that the 2006
acceleration of the mortgage loan was invalid or that the 2012 discontinuance tolled or reset the
statute of limitations. More specifically, Plaintiff contends that: (1) the amendments to CPLR
213(4) and 203(h) due to FAPA’s enactment preclude unilateral revival or deacceleration of the
mortgage loan by Defendant; and (2) only a mortgage debtor’s written agreement pursuant to
General Obligations Law § 17-105 (“GOL § 17-105”) could have extended the statute of
limitations. Such an agreement has not been executed here. Plaintiff further contends that as the
time-barred mortgage constitutes a cloud on title that must be cancelled and discharged pursuant
to RPAPL 1501(4), Defendant must be permanently estopped from asserting any estate, lien, or
interest in the subject premises.
Defendant opposes, arguing that the motion must be denied as: procedurally defective, in
that all the pleadings were not annexed as required by CPLR 3212 (b), and (ii) substantively
deficient, in that the mortgage loan was deaccelerated in 2012 through Defendant’s voluntary
discontinuance, which was memorialized in the 2012 Order, relying on Freedom Mtge. Corp v.
Engel, 37 N.Y.3d 1 (2021), restoring the mortgage loan to installment payment status. Defendant
further argues that retroactive application of FAPA, thus invalidating the revocation, would violate
due process, the Takings Clause, and Contract Clause of the United States Constitution, by
depriving Defendant of its vested property and contractual rights established under the 2012 Order.
Finally, Defendant argues that FAPA lacks express retroactive intent, and that applying it as such
would unconstitutionally extinguish existing rights to foreclose. Accordingly, Defendant’s
3
[* 3]
FILED: KINGS COUNTY CLERK 10/31/2025 04:00 PM INDEX NO. 518566/2020
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 10/31/2025
position is that as the loan was reinstated to installment status after the 2012 Order, the statute of
limitations has not expired, the mortgage is enforceable, and Plaintiff is not entitled to quiet title
or discharge under RPAPL 1501 (4).
In reply, Plaintiff argues that Defendant’s opposition papers offer no admissible evidence
nor do the papers raise a triable issue of fact. In addition, Plaintiff argues that Defendant’s
procedural objection to the omitted pleadings should be disregarded under CPLR 2001 because no
prejudice occurred as the pleadings were electronically filed and otherwise available to Defendant.
Plaintiff maintains that the discontinuance of the first action did not revoke or deaccelerate the
mortgage loan, because neither the 2012 Order nor any subsequent writing evinced an intent to
revoke the acceleration or restore the loan to payment status.
Moreover, Plaintiff asserts that no written agreement under GOL § 17-105 extended the
statute of limitations. Plaintiff contends that FAPA is a statute enacted to correct Engel, 37 N.Y.3d
at 1, and must be applied retroactively to prevent mortgage lenders from manipulating limitations
periods. Further, Plaintiff argues that FAPA does not violate due process or the United States
Constitution because mortgage lenders hold no vested rights to unilaterally reset the statute of
limitations, and that the time-barred mortgage constitutes an unlawful cloud on title that must be
discharged.
DISCUSSION
“The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
absence of any material issues of fact. Failure to make such prima facie showing requires a denial
of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been
4
[* 4]
FILED: KINGS COUNTY CLERK 10/31/2025 04:00 PM INDEX NO. 518566/2020
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 10/31/2025
made, however, the burden shifts to the party opposing the motion for summary judgment to
produce evidentiary proof in admissible form sufficient to establish the existence of material issues
of fact which require a trial of the action.” Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986)
(internal citations omitted). An action to foreclosure a mortgage must be commenced within six
years. CPLR 213 (4). “[E]ven if a mortgage is payable in installments, once a mortgage debt is
accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt.
Acceleration occurs, inter alia, by the commencement of a foreclosure action.” Deutsche Bank
Natl. Trust Co. v. Adrian, 157 A.D.3d 934, 935 (2d Dep’t 2018) (internal quotations and citations
omitted).
As an initial matter, Defendant’s argument that Plaintiff’s failure to attach the pleadings
mandates denial of the motion is without merit. This is a non-prejudicial defect, as the pleadings
in this matter are electronically filed and available to the parties. See Avalon Gardens
Rehabilitation & Health Care Ctr., LLC v. Morsello, 97 A.D.3d 611 (2d Dep’t 2012). The Court
exercises its discretion under CPLR 2001 to consider Plaintiff’s motion on the merits.
In this case, the first action in 2006 expressly accelerated the mortgage loan and demanded
full payment of all sums secured by the mortgage. This action was later discontinued. The second
action was dismissed as barred by statute of limitations, and this finding was affirmed on appeal.
Therefore, Plaintiff has established its prima facie entitlement to judgment that enforcement of the
mortgage is time-barred. Defendant has failed to raise a triable issue of fact in opposition.
Furthermore, contrary to Defendant’s contention, the discontinuance of the first action did not
deaccelerate or revoke the acceleration. The argument was previously rejected by the court in the
2012 Order dismissing the second action, and this finding was affirmed on appeal.
5
[* 5]
FILED: KINGS COUNTY CLERK 10/31/2025 04:00 PM INDEX NO. 518566/2020
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 10/31/2025
FAPA was intended to be applied retroactively and is constitutional. Defendant’s arguments
to the contrary have been rejected by the Appellate Division, Second Department. See Wells Fargo
Bank v. Salko, 241 A.D.3d 851 (2d Dep’t 2025); see also Deutsche Bank Natl. Tr. Co. v. Dagrin,
233 A.D.3d 1065 (2d Dep’t 2024); U.S. Bank v. Mongru, — A.D.3d —, 2025 NY Slip Op 04807
(2d Dep’t 2025). The Court notes that even prior to FAPA being enacted (post-Engel), GOL § 17-
105 was the sole mechanism to revive a time-barred claim in the context of a foreclosure action.
The post-FAPA amendment to GOL § 17-105 merely clarified this, notwithstanding FAPA’s
amendments to CPLR 203 (h) and 3217 (e). See Batavia Townhouses, Ltd. v. Council of Churches
Hous. Dev. Fund Co., Inc., 38 N.Y.3d 467, 472 (2022) (“General Obligations Law §17-105, by its
express terms, is the sole statute governing the tolling or revival of the statute of limitations for an
action to foreclose a mortgage.”).
An important distinction exists between a lender’s right to revoke acceleration, and the
effect of such a revocation the statute of limitations. See US Bank v. Williams, 80 Misc. 3d 258,
265-266 (Sup. Ct. Putnam Co. 2023). In Ditech Fin. LLC v. Naidu, 82 Misc. 3d 452, 460 (Sup. Ct.
Queens Co. 2023), the court explained that “plaintiff's ability to revoke the loan's acceleration
remains unimpaired as FAPA did not disturb the Court of Appeals’ opinion in Engel, which holds
that absent a contemporaneous statement to the contrary, a discontinuance of a foreclosure will
revoke a prior election to accelerate. Instead, FAPA merely addresses the effect of revoking
acceleration as it pertains to the statute of limitations so as to reconcile with General Obligations
Law § 17-105 and CPLR 201.” Therefore, Defendant’s deceleration of the mortgage did not reset
the statute of limitations. Accordingly, the mortgage is time-barred.
6
[* 6]
FILED: KINGS COUNTY CLERK 10/31/2025 04:00 PM INDEX NO. 518566/2020
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 10/31/2025
CONCLUSION
Accordingly, Plaintiff’s motion is GRANTED in its entirety. Plaintiff shall serve notice of
entry within fifteen (15) days of upload of the instant order to NYSCEF upon Defendant and all
parties who have appeared in this action. Further, Plaintiff is to settle a judgment on notice and
submit an affirmation of fees within thirty (30) days of upload of the instant order to NYSCEF.
This constitutes the Decision and Order of the Court.
ENTER:
____________________________
Hon. Carolyn Walker-Diallo, J.S.C.
7
[* 7]