# Ruiz

> District Court, E.D. New York · March 28, 2026

URL: https://www.frixlaw.com/law-library/cases/11357423

## Case

- **Full name:** Richard Ruiz, individually and behalf all others similarly situated v. State of New York Mortgage Agency, Schiller, Knapp, Lefkowitz, and Hertzel, LLP, and M&T Bank Corporation
- **Court:** District Court, E.D. New York
- **Decided:** March 28, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------
RICHARD RUIZ, individually and behalf all others
similarly situated,
MEMORANDUM & ORDER
Plaintiff, 25-CV-1837 (MKB)

v.

STATE OF NEW YORK MORTGAGE AGENCY,
SCHILLER, KNAPP, LEFKOWITZ, AND
HERTZEL, LLP, and M&T BANK
CORPORATION,

Defendants.
---------------------------------------------------------------
MARGO K. BRODIE, United States District Judge:
Plaintiff Richard Ruiz commenced the above action on behalf of himself and others
similarly situated on April 3, 2025 against Defendants State of New York Mortgage Agency
(“SONYMA”), Schiller, Knapp, Lefkowitz, and Hertzel LLP (“Schiller Law”), and M&T Bank
Corporation (“M&T Bank”) (collectively, “Defendants”).1 (Compl., Docket Entry No. 1.)
Plaintiff filed an Amended Complaint on July 2, 2025 asserting ten causes of action claiming that
Defendants conspired to defraud him of surplus money and award themselves inflated compound
interest from the foreclosure sale of his property located at 529 Alabama Avenue, Brooklyn,
New York, Block: 3820, Lot: 103 (the “Subject Property”). (Am. Compl. ¶ 52, Docket Entry
No. 45.) In the Amended Complaint, Plaintiff asserts five causes of action against all Defendants

1 Plaintiff initially also named John and Jane Doe Investors 1–10 and John and Jane
Does 1–10 as Defendants but dismissed them from the action on June 11, 2025. (Notice of
Voluntary Dismissal, Docket Entry No. 40; Order dated June 12, 2025.)
for violations of: (1) the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the
“FDCPA”), (id. ¶¶ 77–84); (2) New York General Business Law § 349 (“GBL § 349”), (id. ¶¶

85–90); (3) the Racketeering Influence and Corrupt Organizations Practices Act, 18 U.S.C. §§
1962(c) and (d) (“RICO”), (id. ¶¶ 95–127); (4) prima facie tort, (id. ¶¶ 153–57); and (5)
conversion, (id. ¶¶ 158–64). In addition, Plaintiff alleges four claims individually against
Schiller Law for violations of (1) New York Judiciary Law § 487 (“Judiciary Law § 487”), (id.
¶¶ 91–94); (2) negligence, (id. ¶¶ 128–38); (3) gross negligence, (id. ¶¶ 139–42); and (4) legal
malpractice, (id. ¶¶ 143–47). Plaintiff also alleges a claim individually against SONYMA for
unjust enrichment, (id. ¶¶ 148–52). Plaintiff seeks against all Defendants a declaratory
judgment, injunctive relief enjoining Defendants from continuing their alleged unlawful debt
collection activities, actual and compensatory damages, treble damages pursuant to RICO and

Judiciary Law § 487, statutory damages pursuant to the FDCPA, disbursements, costs, and
attorneys’ fees. (Id. at 41–42.)
M&T Bank and SONYMA move separately to dismiss the Amended Complaint2 and
Plaintiff opposes the motions.3 For the reasons discussed below, the Court grants Defendants’

2 Schiller Law has not appeared or responded to this action. On May 6, 2025, Plaintiff
filed Proof of Service on Schiller Law stating he served Schiller Law by delivering the
Complaint and a Summons to the New York Secretary of State. (Summons, Docket Entry No.
19.) On May 8, 2025, the Court ordered Plaintiff to mail the Complaint and Summons to
Schiller Law’s address listed for service of process on the Secretary of State’s website and
directed Plaintiff’s counsel to file a declaration on or before May 15, 2025 demonstrating
compliance with the order. (Order dated May 8, 2025.) On May 9, 2025, Plaintiff filed an
Affidavit of Service stating he served Schiller Law at the address provided on the Secretary of
State’s website. (Aff. of Service, Docket Entry No. 20.)

3 (M&T Bank’s Mot. to Dismiss (“M&T Bank’s Mot.”), Docket Entry No. 51; M&T
Bank’s Mem. in Supp. of Mot. to Dismiss (“M&T Bank’s Mem.”), appended to M&T Bank’s
Mot., Docket Entry No. 51-4; M&T Bank’s Reply in Supp. of Mem. (“M&T Bank’s Reply”),
motions and dismisses the Amended Complaint. In addition, the Court sua sponte dismisses the
claims against Schiller Law.

I. Background
a. The parties
Plaintiff is a New York State resident and a “consumer” as defined by the FDCPA. (Am.
Compl. ¶¶ 21, 78.) SONYMA is a New York entity that conducts business in the State of New
York, is a “debt collector” as defined by the FDCPA, (id. ¶¶ 22, 78), and acts as a mortgage
noteholder, (id. ¶ 26). M&T Bank is a New York corporation that conducts business in New
York, “regularly attempts to collect debts alleged to be due to another,” (id. ¶ 23), and acts as a
mortgage servicer that manages the loans, (id. ¶ 27).4 Schiller Law is a limited liability
partnership located and doing business in New York State. (Id. ¶ 24.) SONYMA retained

Schiller Law as a law firm to “collect on consumer debt that [SONYMA] [ ] claims to own” and
“[p]ursuant to that retention, Schiller [Law] files and maintains actions in New York State courts
seeking debt collection” for amounts owed on mortgage agreements. (Id. ¶¶ 24, 28.)

Docket Entry No. 53; SONYMA’s Mot. to Dismiss (“SONYMA’s Mot.”), Docket Entry No. 54;
SONYMA’s Mem. in Supp. of Mot. to Dismiss (“SONYMA’s Mem.”), appended to
SONYMA’s Mot., Docket Entry No. 54-1; Pl.’s Opp’n; SONYMA’s Reply in Supp. of Mem.
(“SONYMA’s Reply”), Docket Entry No. 56; Pl.’s Opp’n to Mots. to Dismiss (“Pl.’s Opp’n”),
Docket Entry No. 57.)

4 M&T Bank argues Plaintiff incorrectly sued M&T Bank Corporation, the parent
company, instead of M&T Bank, the “national banking association” with whom Plaintiff had a
mortgage account. (M&T Bank’s Mem. 1, 26.) In its motion papers, M&T Bank Corporation
calls itself “M&T Bank,” (id. at 1), and nevertheless presents arguments on behalf of M&T
Bank. (See generally M&T Bank’s Mem.) The Court uses M&T Bank to refer to M&T Bank
Corporation and/or M&T Bank and discusses the parties’ arguments regarding whether Plaintiff
named the correct defendant infra in Section II.d.iii.
b. Plaintiff’s allegations
Plaintiff alleges Defendants “collectively engaged in a fraudulent scheme to purposefully

miscalculate interest due and owing on residential mortgages in order to obtain vastly inflated
payouts from court-ordered foreclosure sales.” (Id. ¶ 11.) In support, Plaintiff contends that
Defendants “submit[ed] deceptive documentation to New York Courts” that they expected would
be “blindly approve[d]” and “prematurely utilize[d] the final monetary judgment award to the
noteholder, [SONYMA], awarded in a court’s [j]udgment of [f]oreclosure and [s]ale . . . in
calculating improper compound interest accrued on a mortgage loan before the [judgment of
foreclosure and sale] was actually entered.” (Id. ¶¶ 12–13.) By using the “already-determined
[judgment of foreclosure and sale] amount as the basis for the calculation of interest . . . instead .
. . of the mortgage principal,” (id. ¶ 14), Defendants received excess money from the state court-

ordered foreclosure sale of the Subject Property and “deprived Plaintiff . . . of [his] legal right to
be awarded surplus monies.” 5 (Id. ¶¶ 11, 12.)

5 In the Amended Complaint, Plaintiff seeks certification of this action as a collective
action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself,
individually, and the following class:
(a) all persons sued, or creditors of such persons or lienholders of
liens against the property that was the subject of the foreclosure
action in question, in state-court lawsuits related to the collection of
debt owed on a mortgage loan document secured by real property,
(b) that were sold at auction, (c) in which Schiller [Law] was
identified as counsel for the plaintiff in the complaint, (d) within six
years of the date of the filing of this action. Excluded from the
[c]lass are the officers and directors of any Defendant, members of
their immediate families and their legal representatives, heirs,
successors or assigns, and any entity in which any Defendant has or
had a controlling interest, at all relevant times.
(Am. Compl. ¶ 70.)
i. The foreclosure action
On February 24, 2000, Plaintiff took out a mortgage on the Subject Property with non-

party CFS Bank. (Mortgage Agreement, annexed to the Declaration of Beth L. Kaufman
(“Kaufman Decl.”),6 Docket Entry No. 54-3; see Am. Compl. ¶ 53.)7 On February 24, 2000,
CFS Bank assigned the mortgage to SONYMA. (Id. ¶ 54.) On February 4, 2015, SONYMA
commenced a foreclosure action under Index No. 501233/2015 against Plaintiff in the Supreme
Court of the State of New York, County of Kings (the “State Court Action”).8 (Am. Compl. ¶

6 The Kaufman Decl. annexed additional relevant State Court Action documents:
Mortgage Summons & Compl., annexed as Ex. 5, Docket Entry No. 54-7; Am. Notice of Mot.
for Default J., annexed as Ex. 7, Docket Entry No. 54-9; Order of Reference, annexed as Ex. 8,
Docket Entry No. 54-10; J. of Foreclosure and Sale, annexed as Ex. 9, Docket Entry No. 54-11;
Notice of Claim to Surplus Monies, annexed as Ex. 10, Docket Entry No. 54-12; Order of
Reference for Surplus Proceedings, annexed as Ex. 11, Docket Entry No. 54-13; Order granting
Order of Reference for Surplus Proceedings, annexed as Ex. 12, Docket Entry No. 54-14; Pl.’s
Mot. to Confirm, annexed as Ex. 14, Docket Entry No. 54-16; Referee’s R&R on Surplus
Proceedings, annexed as Ex. 15, Docket Entry No. 54-17; Pl.’s Mot. to Confirm Referee’s R&R
on Surplus Proceeding, annexed as Ex. 16, Docket Entry No. 54-18; Order Confirming Referee’s
R&R on Surplus Proceedings, annexed as Ex. 17, Docket Entry No. 54-19; Pl.’s Am. Mot. to
Confirm Referee’s R&R on Surplus Proceedings, annexed as Ex. 18, Docket Entry No. 54-20;
Decision and Order filed Oct. 31, 2023, annexed as Ex. 19, Docket Entry No. 54-21.

7 The Court notes that while Plaintiff pleads the date of the mortgage was May 23, 2000,
(Am. Compl. ¶ 53), the submitted mortgage agreement is dated February 24, 2000, (Mortgage
Agreement).

8 The Court takes judicial notice of the documents filed in the State Court Action. See
Kelsey v. Kessel, No. 24-1105, 2025 WL 1324213, at *2 n.3 (2d Cir. May 7, 2025) (summary
order) (“A court may take judicial notice of a document filed in another court not for the truth of
the matters asserted in the other litigation, but rather to establish the fact of such litigation and
related filings.” (quoting Michael Grecco Prods., Inc. v. RADesign, Inc., 112 F.4th 144, 148 n.1
(2d Cir. 2024) (internal quotation marks omitted))); Glob. Network Commc’ns, Inc. v. City of
New York, 458 F.3d 150, 157 (2d Cir. 2006) (quoting Int’l Star Class Yacht Racing Ass’n v.
Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir.1998)) (same); see also Fecteau v. City of
Mount Vernon, No. 23-CV-9173, 2025 WL 754043, at *7 (S.D.N.Y. Mar. 10, 2025) (“[C]ourts
may take judicial notice of public documents or matters of public record . . . including the
contents of court dockets,” but “a document filed in another court . . . [only] establish[es] the fact
55; Mortgage Summons and Compl.) Through its attorney Schiller Law, SONYMA filed an
order for a default judgment and an Order of Reference in the State Court Action on October 17,

2016.9 (Am. Notice of Mot. for Default J.; see Am. Compl. ¶ 56.) On March 3, 2017, the state
court granted default judgment and an Order of Reference. (Am. Compl. ¶ 57; Order of
Reference.) On May 11, 2017, the court-appointed referee submitted a Referee’s Report of
Amount Due which set forth the amounts due and owing on the mortgage to be $71,308.77.
(Am. Compl. ¶ 58.) SONYMA filed a notice of motion for Judgment of Foreclosure and Sale in
the State Court Action on May 11, 2017, attaching a proposed order that Plaintiff alleges was
drafted by Schiller Law that is “either identical or substantially similar” to the Judgment of
Foreclosure and Sale subsequently entered in the State Court Action. (Id. ¶ 59.) On October 12,
2017, the state court entered a Judgment of Foreclosure and Sale for $77,308.77 due on the

mortgage on the Subject Property (“Judgment of Foreclosure and Sale”). (Id. ¶ 60; J. of
Foreclosure and Sale.)

of such litigation and related filings” (first alteration in original) (citations omitted)); Doe v. State
Univ. of N.Y. Purchase Coll., 617 F. Supp. 3d 195, 201 n.3 (S.D.N.Y. 2022) (“‘Courts may take
judicial notice of public documents and matters of public record,’ including ‘document[s] filed in
another court[,] not for the truth of the matters asserted in the other litigation, but rather to
establish the fact of such litigation and related filings.’” (alterations in original) (first quoting
Casey v. Odwalla, Inc., 338 F. Supp. 3d 284, 294 (S.D.N.Y. 2018); and then quoting Glob.
Network Commc’ns, 458 F.3d at 157)).

9 The Court notes that Plaintiff incorrectly pleads that SONYMA filed an order for a
default judgment and an Order of Reference on September 22, 2015, (Am. Compl. ¶ 56), but
SONYMA’s submitted order for a default judgment and an Order of Reference shows that the
correct filing date is October 17, 2016, (Am. Notice of Mot. for Default J.).
On April 11, 2018, the Subject Property was sold via public auction for $320,000 to a
non-party.10 (Am. Compl. ¶ 61.) The referee filed a Referee’s Report of Sale for the State Court

Action (“Referee’s Report of Sale”) on April 23, 201811 that utilized the final judgment amount
awarded in the Judgment of Foreclosure and Sale, $71,308.77, to compute the interest owed to
Defendants and awarded SONYMA a total of $84,026.62, including interest and costs. (Id. ¶¶
63–65, 69.) Referee’s Report of Sale, No. 501233/2015. A total surplus of $219,731.49 was
deposited with the referee. Referee’s Report of Sale 13, No. 501233/2015.
Relevant figures from the Referee’s Report of Sale are: (1) $71,308.77, the “[a]mount
due [to] Plaintiff, as per Judgment [of Foreclosure and Sale], as of March 31, 2017”; (2)
$2,666.76, the “[i]nterest on Judgment [of Foreclosure and Sale] through date of entry at contract
rate (7.000%) [195 days]”; and (3) $3,182.52, the “[i]nterest on Judgment [of Foreclosure and

Sale] through date of entry through transfer at 9.0% [181 days].” Id. (Am. Compl. ¶ 64.) The
final judgment amount of $71,308.77 in the Referee’s Report of Sale includes interest at the
mortgage rate up until March 31, 2017, and it computes interest at the mortgage interest rate
using the judgment amount as its basis instead of the mortgage principal. (Am. Compl. ¶¶ 64,
66.) Plaintiff alleges that Defendants submitted a proposed order with improper calculations that
“prematurely utilize the final judgment amount to compute the pre-judgment interest accrued,”

10 The Court notes that Plaintiff incorrectly pleads January 11, 2018 as the date of sale
for the Subject Property, (Am. Compl. ¶ 61), but the State Court Action documents, such as the
Notice of Claim to Surplus Monies, states the date of sale for the Subject Property was April 11,
2018, (see Notice of Claim to Surplus Monies).

11 The Court notes that Plaintiff incorrectly pleads that the state court filed the Referee’s
Report of Sale on April 11, 2018, (Am. Compl. ¶ 63), but the Referee’s Report of Sale shows it
was filed on April 23, 2018, see Referee’s Report of Sale, No. 501233/2015 (N.Y. Sup. Ct. filed
Apr. 23, 2018), Docket Entry No. 102.
and therefore awarded SONYMA a total of $84,026.62 instead of $83.426.84, Plaintiff’s alleged
correct total amount, for a surplus of $599.78. (Id. ¶¶ 67–69.)

On September 6, 2018, Plaintiff filed a Notice of Claim of Surplus Monies from the
foreclosure sale of the Subject Property and an Order of Reference in Surplus Monies
Proceedings. (Notice of Claim to Surplus Monies; Order of Reference in Surplus Monies
Proceedings.) On January 28, 2019, the state court issued an Order of Reference in Surplus
Monies Proceedings confirming the Referee’s Report of Sale and appointing a referee to
determine the disbursement of the “surplus monies” to the respective parties (“Confirmation
Order”). (Order granting Order of Reference in Surplus Monies Proceedings.) On January 31,
2020, Plaintiff filed a motion to confirm the state court’s order confirming the Referee’s Report
of Sale and appointing a new referee to disburse “surplus monies.” (Pl.’s Mot. to Confirm.) On

July 21, 2022, the appointed referee filed a Report and Recommendation on the surplus
proceedings, (Referee’s R&R on Surplus Proceedings), and Plaintiff moved to confirm the
Report and Recommendation, (Pl.’s Mot. to Confirm Referee’s R&R on Surplus Proceedings).
On September 30, 2022, the state court confirmed the Referee’s Report and Recommendation on
the surplus proceedings. (Order Confirming Referee’s R&R on Surplus Proceedings.) Plaintiff
filed an amended motion to confirm the Referee’s Report and Recommendation on August 15,
2023, upon the direction of the New York State Comptroller Office who stated such a motion
and subsequent order was necessary for the Comptroller Office to review and ultimately approve
the disbursement. (Pl.’s Am. Mot. to Confirm Referee’s R&R on Surplus Proceedings.) Ltr.
from Comptroller, annexed as Ex. E to Pl.’s Am. Mot. to Confirm Referee’s R&R on Surplus

Proceedings, No. 501233/2015 (N.Y. Sup. Ct. filed Aug. 15, 2023), Docket Entry No. 137. On
October 31, 2023, the state court granted Plaintiff’s amended motion and directed the
disbursement of surplus funds. (Decision and Order filed Oct. 31, 2023.)

ii. FDCPA allegations
Plaintiff contends that Defendants violated the FDCPA “by making false and misleading
representations, using deceptive means and engaging in unfair and abusive practices,” including:
(1) filing “fraudulent and misleading” motions and documents in the State Court Action against
Plaintiff containing interest calculations that illegally inflated the money due and owed to
Defendants; (2) filing “fraudulent, deceptive and misleading” motions and referee’s reports of
sale containing interest calculations that illegally inflated the money due and owed to
Defendants; and (3) collecting money “incidental to the principal obligations under mortgage
loan agreements without being expressly authorized by the original mortgage loan agreement to

do so.” (Am. Compl. ¶ 82.)
iii. GBL § 349 allegations
To support her claim under GBL § 349, Plaintiff asserts the same facts as his FDCPA
claim to support his claim under GBL § 349. (See id. ¶¶ 85, 89; compare id. ¶ 89 to id. ¶ 82.)
Plaintiff alleges that “Defendants’ acts and omissions are directed at consumers” and are
“deceptive, misleading and fraudulent” including the acts of (1) filing “fraudulent and
misleading” motions and documents in the State Court Action containing interest calculations
that illegally inflated the money due and owed to Defendants, and (2) filing “fraudulent,
deceptive and misleading” motions and referee’s reports of sale containing interest calculations
that illegally inflated the money due and owed to Defendants. (Id. ¶¶ 89–90.)
iv. The RICO allegations
Plaintiff first alleges that Defendants were a RICO enterprise, the purpose of which was

to “secure judgments of foreclosure and sale through fraudulent means and to use those
judgments to extract money” from Plaintiff and class members. (Am. Compl. ¶¶ 98–102.)
Second, Plaintiff alleges that Defendants engaged in a pattern of racketeering activity to “defraud
and obtain money or property by means of false or fraudulent pretenses and representations” by:
(i) “[p]roducing and filing fraudulent motions for a judgment of foreclosure and sale;” (ii)
“[p]roducing and filing fraudulent [r]eferee [r]eports of [s]ale;” (iii) “[u]sing fraudulent,
deceptive and misleading [r]eferee [r]eports of [s]ale to obtain [j]udgments of [f]oreclosure and
[s]ale against Plaintiff and [c]lass members under false pretenses;” (iv) “[u]sing fraudulently
obtained judgments of foreclosure and sale to steal surplus monies from Plaintiff and [c]lass

members;” and (v) “[u]sing fraudulent conduct to report sales that are consistently lower in price
than the bid at auction depriving [ ] Plaintiff and [c]lass members of surplus monies.” (Id. ¶
104.) Third, in furtherance of this goal, Plaintiff also alleges that the Defendants filed false
filings in the State Court Action on May 11, 2017 and April 11, 2018, “falsely claiming that
[SONYMA] is entitled to illegally computed compound interest.” (Id. ¶ 105.) Plaintiff also
alleges that Defendants have used these “deceptive court filings with every [judgment of
foreclosure and sale] that they have fraudulently obtained” to further the fraudulent scheme and
take money and property from Plaintiff “by reasons of false pretenses and representations.” (Id.
¶ 107.) Fourth, Plaintiff alleges that Defendants engaged in racketeering activity by “us[ing]
wires and the mail to receive the unlawfully obtained monies,” constituting wire fraud as defined

by 18 U.S.C. § 1343. (Id. ¶ 108.) Fifth, Plaintiff alleges that, as a result, he has been “deprived
of due process and [ ] had [a Judgment of Foreclosure and Sale] entered against [him] which
[has] been used to extract money from [him] by selling [him] [the Subject] [P]roperty.” (Id. ¶
116.)

v. Judiciary Law § 487 allegations
To support his claim under Judiciary Law § 487 against Schiller Law, Plaintiff asserts the
same allegations as his FDCPA and GBL § 349 claims, but also alleges Schiller acted with the
“intent to deceive consumers and multiple New York courts.” (Id. ¶¶ 91, 93; compare id. ¶ 93 to
id. ¶ 82 and id. ¶ 89.)
vi. Negligence, gross negligence, and legal malpractice allegations
Plaintiff asserts negligence, gross negligence, and legal malpractice claims against
Schiller Law based on the same underlying allegations. (Id. ¶¶ 128–47.) In support of his
negligence claim, Plaintiff alleges Schiller Law “instructs its attorneys and employees to

calculate interest with the fraudulent method” and “use proposed orders and referee reports of
sale with a miscalculated judgment amount.” (Id. ¶¶ 131–32.) In support of his gross negligence
claim, Plaintiff alleges Schiller Law’s “failure to follow the basic and necessary protocol for the
calculations in the referee reports of sale manifested a reckless and intentional breach of its duty
of care and a complete disregard for the rights of the Plaintiff.” (Id. ¶ 140.) In support of his
legal malpractice claim, Plaintiff alleges Schiller Law “negligently and recklessly filed
fraudulent referee reports of sale on behalf of [SONYMA].” (Id. ¶ 144.) For all three claims of
negligence, gross negligence, and legal malpractice, Plaintiff argues that Schiller Law “failed to
take available basic and necessary steps to properly report sales of the foreclosed properties,
resulting in sales that are lower in price than the bid amount at auction.” (Id. ¶¶ 134, 141, 145.)
vii. Unjust enrichment, prima facie tort, and conversion allegations
Plaintiff asserts an unjust enrichment claim against SONYMA and prima facie tort and

conversion claims against Defendants for his loss of surplus money. (Id. ¶¶ 148–64.) First,
Plaintiff asserts an unjust enrichment claim against SONYMA based on its receipt of $599.78
more than it was legally entitled “through Defendants’ fraudulent interest calculations.” (Id. ¶
149.) Second, Plaintiff asserts a prima facie tort claim against Defendants for “intentionally
[seeking] to reduce and/or eliminate the surplus monies rightfully owed to Plaintiff.” (Id. ¶ 154.)
Third, Plaintiff asserts a conversion claim against Defendants for “intentionally, and without
authority, assum[ing] or exercis[ing] control over the surplus monies from the foreclosure
auction and sale of the Subject Property,” thus “interfer[ing] with Plaintiff’s possessory right and
vested interest in the surplus funds from the sale.” (Id. ¶¶ 161–62.)

II. Discussion
a. Standard of review
A district court may dismiss an action for lack of subject-matter jurisdiction pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court “lacks the statutory or
constitutional power to adjudicate it.” AMTAX Holdings 227, LLC v. CohnReznick LLP, 136
F.4th 32, 37 (2d Cir. 2025) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000)); Citizens United to Protect Our Neighborhoods v. Vill. of Chestnut Ridge, N.Y., 98 F.4th
386, 391 (2d Cir. 2024) (quoting Conn. Parents Union v. Russell-Tucker, 8 F.4th 167, 172 (2d
Cir. 2021)); Brokamp v. James, 66 F.4th 374, 386 (2d Cir. 2023) (quoting Cortlandt St. Recovery
Corp. v. Hellas Telecomms., S.à.r.l., 790 F.3d 411, 416–17 (2d Cir. 2015)), cert. denied, 144 S.

Ct. 1095 (2024); Green v. Dep’t of Educ. of City of New York, 16 F.4th 1070, 1075 (2d Cir.
2021) (quoting Makarova, 201 F.3d at 113). Courts must “accept the complaint’s material
allegations as true, and . . . draw all reasonable inferences in the plaintiffs’ favor,” Sunvestment
Energy Grp. NY 64 LLC v. Nat’l Grid USA Servs. Co., 116 F.4th 106, 113 (2d Cir. 2024)

(quoting Raymond Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719, 725 (2d Cir. 2017)), but
“[w]here jurisdictional facts are placed in dispute, the court has the power and obligation to
decide issues of fact by reference to evidence outside the pleadings,” Talarico Bros. Bldg. Corp.
v. Union Carbide Corp., 73 F.4th 126, 136 (2d Cir. 2023) (quoting APWU v. Potter, 343 F.3d
619, 627 (2d Cir. 2003)); Harty v. W. Point Realty, Inc., 28 F.4th 435, 441 (2d Cir. 2022) (“It is
only where ‘jurisdictional facts are placed in dispute’ that the court has the ‘obligation to decide
issues of fact by reference to evidence outside the pleadings, such as affidavits.’” (first quoting
Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014); and
then citing LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999))); see Iacovo v. Magguilli,

No. 24-CV-4372, 2025 WL 1135471, at *3 (E.D.N.Y. Apr. 17, 2025) (“In resolving a motion to
dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint
. . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.”
(quoting Tandon, 752 F.3d at 243)). Ultimately, “the party asserting subject matter jurisdiction
‘has the burden of proving by a preponderance of the evidence that it exists.’” Tandon, 752 F.3d
at 243 (quoting Makarova, 201 F.3d at 113); AMTAX Holdings, 136 F.4th at 37 (“A plaintiff
asserting subject matter jurisdiction has the burden of proving by a preponderance of the
evidence that it exists.” (quoting Makarova, 201 F.3d at 113)).
b. The Court has subject matter jurisdiction because this action is not barred
by the Rooker-Feldman doctrine

Defendants move to dismiss the action for lack of subject matter jurisdiction and argue
the action is barred by the Rooker-Feldman doctrine which precludes federal courts from
reviewing state court judgments. (SONYMA’s Mem. 11–12; M&T Bank’s Mem. 15–17.) D.C.
Ct. App. v. Feldman, 460 U.S. 462, 486–87 (1983) (“[A] United States [d]istrict [c]ourt has no

authority to review final judgments of a state court in judicial proceedings.”); Rooker v. Fid. Tr.
Co., 263 U.S. 413, 415–16 (1923). For the reasons explained below, the Court has subject
matter jurisdiction over Plaintiff’s claims and denies Defendants’ motion to dismiss based on this
ground.
Defendants argue that the Rooker-Feldman doctrine bars all of Plaintiff’s claims because
Plaintiff lost in state court and “asks the Court to effectively modify the state court judgment by
enjoining Defendants to recalculate the interest.” (M&T Bank’s Mem. 16; see SONYMA’s
Mem. 12.) In support, Defendants argue that Plaintiff complains of injuries allegedly caused by
the state court judgments with “the crux of his allegations being the Defendants’ alleged

misrepresentations to the state court reached in the [Judgment of Foreclosure and Sale] . . . which
was used to calculate the interest shown in the [Referee’s] Report and Sale. (SONYMA’s Mem.
12; see M&T Bank’s Mem. 16.) M&T Bank argues that “even where Plaintiff is not explicitly
asking the Court to overturn the State Court [Action] judgment,” the injuries he pleads were
caused by the illegally inflated interest calculations “would necessarily require th[e] Court to
decide the [Judgment of Foreclosure and Sale] was improperly issued.” (M&T Bank’s Reply 5.)
Plaintiff argues that all of his claims are “wholly independent” of the Judgment of
Foreclosure and Sale and do not seek to overturn it. (Pl.’s Opp’n 10.) First, Plaintiff argues that
he has not met the second prong of the Rooker-Feldman doctrine because there is no causal link
between the Judgment of Foreclosure and Sale and his injury since Plaintiff’s injury was “merely

ratified by the [state] court” rather than caused by it. (Id. at 11; see id. at 11–14.) Second,
Plaintiff alleges that the unlawfully computed interest occurred during the post-auction stage of
the litigation with “little to no judicial oversight.” (Id. at 11–12.) Third, Plaintiff contends that
his injuries were caused by the “fraudulent calculations of interest in the final stages of

foreclosure proceedings — not the underlying Judgment of Foreclosure and Sale” that were then
“ratified by the court without any contemporaneous judicial review.” (Id. at 12.) Fourth,
Plaintiff contends that the Court can consider his claims without assessing the validity of the
Judgment of Foreclosure and Sale, and damages for fraud are not barred by Rooker-Feldman,
and therefore the third prong is not met. (Id. at 15–16.) Finally, Plaintiff argues the relief sought
would not invalidate the Judgment of Foreclosure and Sale, nor does he “seek a judgment
overturning, invalidating, or vacating the underlying state court judgments.” (Id. at 13–14.)
In Rooker, 263 U.S. at 415–16, and Feldman, 460 U.S. at 482–84, the Supreme Court
held that federal district courts lack subject matter jurisdiction over disputes where a plaintiff

essentially seeks review of a state court decision. Feldman, 460 U.S. at 482–84; Rooker, 263
U.S. at 416 (holding that “no court of the United States other than [the Supreme Court] could
entertain a proceeding to reverse or modify [a state court’s] judgment for errors”); see also
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 281 (2005) (holding that Rooker-
Feldman bars “cases brought by state-court losers complaining of injuries caused by state-court
judgments rendered before the federal district court proceedings commenced and inviting district
court review and rejection of those judgments”); Vossbrinck v. Accredited Home Lenders, Inc.,
773 F.3d 423, 426 (2d Cir. 2014) (“Under the Rooker-Feldman doctrine, federal district courts
lack jurisdiction over cases that essentially amount to appeals of state court judgments.” (citing
Exxon Mobil Corp., 544 U.S. at 283–84)). “Underlying the Rooker-Feldman doctrine is the

principle, expressed by Congress in 28 U.S.C. § 1257, that within the federal judicial system,
only the Supreme Court may review state-court decisions.” Hoblock v. Albany Cnty. Bd. of
Elections, 422 F.3d 77, 85 (2d Cir. 2005); see also Vossbrinck, 773 F.3d at 426 (“The doctrine is
rooted in the principle that ‘appellate jurisdiction to reverse or modify a state-court judgment is

lodged . . . exclusively in [the Supreme] Court.’” (alteration in original) (quoting Exxon Mobil
Corp., 544 U.S. at 283)).
In order for the Rooker-Feldman doctrine to apply, the following four-part test must be
satisfied: “(1) the federal-court plaintiff lost in state court; (2) the plaintiff ‘complain[s] of
injuries caused by a state court judgment’; (3) the plaintiff ‘invite[s] . . . review and rejection of
that judgment’; and (4) the state judgment was ‘rendered before the district court proceedings
commenced.’” Vossbrinck, 773 F.3d at 426 (alterations in original) (quoting Hoblock, 422 F.3d
at 85); see also Binder v. Cap. One Bank, N.A., No. 25-1201, 2025 WL 3751871, at *1 (2d Cir.
Dec. 29, 2025) (summary order) (affirming Rooker-Feldman doctrine barred appellant’s claims

because it required the court to “review and reject[]” the state court’s determination (quoting
Vossbrinck, 773 F.3d at 426)); Powell v. Ocwen Loan Servicing, LLC, 840 F. App’x 610, 612 (2d
Cir. 2020) (affirming that review was barred pursuant to the Rooker-Feldman doctrine because
“correcting [the] loan balance as found by the state court” in the foreclosure judgment would
invite rejection of the state court’s judgment); Wilson v. HSBC Bank, USA, 834 F. App’x 607,
609 (2d Cir. 2020) (outlining the Rooker-Feldman test); Ahchouch v. Lakeview Loan Servicing,
LLC, No. 25-CV-93, 2025 WL 70136, at *2 (S.D.N.Y. Jan. 10, 2025) (“[C]ourts in this Circuit
have consistently held that any attack on a judgment of foreclosure is clearly barred by the
Rooker-Feldman doctrine.” (alteration in original) (quoting Brooks v. Aiden 0821 Cap. LLC, No.
19-CV-6823, 2020 WL 4614323, at *3 (E.D.N.Y. July 22, 2020))); In re Ditech Holding Corp.,

No. 19-BR-10412, 2022 WL 1750997, at *12 (Bankr. S.D.N.Y. May 28, 2022) (dismissing
claims because “the [c]ourt would be required to look behind the judgment and determine
whether the . . . [s]tate [c]ourt [f]oreclosure [j]udgment is the product of alleged fraud”); In re
Allard, No. 18-BR-14092, 2019 WL 4593854, at *3 n.2 (Bankr. S.D.N.Y. Sep. 20, 2019) (noting

that a debtor “tried unsuccessfully several times to get th[e] [c]ourt . . . to modify the state court
foreclosure judgment, reducing the interest award . . . [b]ut the Rooker-Feldman doctrine does
not permit th[e] [c]ourt to do so”); In re Moise, 575 B.R. 191, 202 (Bankr. E.D.N.Y. 2017)
(dismissing adversary complaint under the Rooker-Feldman doctrine seeking to reverse the state
court foreclosure judgment).
“Although ‘all four requirements must be met in order for Rooker-Feldman to act as a
jurisdictional bar . . . the second requirement — that the plaintiff complains of an injury caused
by a state-court judgment — is the core requirement from which the other Rooker-Feldman
requirements derive.’” Dorce v. City of New York, 2 F.4th 82, 101–02 (2d Cir. 2021) (quoting

Sung Cho v. City of New York, 910 F.3d 639, 646 (2d Cir. 2018)). The Second Circuit has
acknowledged that plaintiffs may “purport to complain of injury by individuals in reality
complain of injury by state-court judgments,” and therefore the Circuit “developed the following
formula to help guide our inquiry: ‘a federal suit complains of injury from a state-court
judgment, even if it appears to complain only of a third party’s actions, when the third party’s
actions are produced by a state-court judgment and not simply ratified, acquiesced in, or left
unpunished by it.’” Sung Cho, 910 F.3d at 646 (quoting Hoblock, 422 F.3d at 88).
Plaintiff’s claims are not barred by the Rooker-Feldman doctrine because (1) Plaintiff’s
injuries were not caused by the state court judgment, and (2) Plaintiff’s requests for relief do not
seek to set aside the Judgment of Foreclosure and Sale or the Confirmation Order, and therefore,

the second and third prongs of Rooker-Feldman are not met. See Dorce, 2 F.4th at 104 (finding
plaintiffs’ claims were not barred by Rooker-Feldman because plaintiffs only sought damages for
injuries caused by a defendant’s misconduct in procuring a state court judgment, but not for
injuries directly caused by that judgment).

As an initial matter, Plaintiff satisfies the first and fourth Rooker-Feldman prongs: the
federal-court plaintiff lost in the state court, and the state court rendered judgment with the
Judgment of Foreclosure and Sale on October 12, 2017 before this action was brought in federal
court.12 First, Plaintiff lost in the State Court Action which resulted in the Judgment of
Foreclosure and Sale and Confirmation Order. See id. at 103 (finding the first prong satisfied by
a “property owner who loses his or her interest in the property through an in rem foreclosure
proceeding in state court”). Second, Plaintiff filed this action on April 3, 2025, approximately
seven and a half years after the Judgment of Foreclosure and Sale and over six years after the
Confirmation Order were filed and entered in the State Court Action. See id. at 102 (finding

state court foreclosure judgments rendered prior to commencement of the federal action satisfied
the fourth prong).
However, regarding the second factor, Plaintiff’s injuries were not caused by the state
court judgment, but instead, Defendants’ alleged fraud, and as to the third factor, the asserted
claims do not invite federal review and rejection of the Judgment of Foreclosure and Sale and the
Confirmation Order. Accordingly, Plaintiff’s requests for relief do not seek to set aside the
Judgment of Foreclosure and Sale and Confirmation Order, and as a result, the second and third
Rooker-Feldman prongs are not satisfied. See id. at 104 (permitting claims for compensatory
damages for injury caused by the defendant’s misconduct in procuring a state court judgment);
Lindow v. Argent Mortg. Co., No. 23-CV-8860, 2024 WL 4665181, at *6 (E.D.N.Y. Nov. 4,

12 Plaintiff does not dispute that the first and fourth prongs are met. (See Pl.’s Opp’n 10–
15 (discussing only the second and third prongs).)
2024) (“[T]he second and third Rooker-Feldman requirements are not met when a plaintiff
alleges that fraud occurred during a foreclosure proceeding and seeks damages for his injuries.”

(quoting Limtung v. Thomas, No. 19-CV-3646, 2021 WL 4443710, at *5 (E.D.N.Y. Sep. 28,
2021))).
Each of Plaintiff’s claims request damages without inviting the Court to overturn the
Judgment of Foreclosure and Sale and Confirmation Order. See Dorce, 2 F.4th at 104 (“[The
Second Circuit] has concluded that Rooker-Feldman does not bar plaintiffs from seeking
compensatory damages for misconduct ‘that defendants pursued in obtaining’ state court
judgments.” (quoting Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 94–95 (2d Cir.
2015))); Worthy-Pugh v. Deutsche Bank Nat’l Tr. Co., 664 F. App’x 20, 21 (2d Cir. 2016)
(“The Rooker-Feldman doctrine does not prevent a district court from reviewing a claim for

damages stemming from an allegedly fraudulent foreclosure judgment, because the district court
can determine damages liability without reviewing the propriety of the state court judgment.”);
Sykes, 780 F.3d at 94–95 (noting that “claims . . . speak[ing] not to the propriety of the state
court judgments, but to the fraudulent course of conduct that [the] defendants pursued in
obtaining such judgments” are not barred by Rooker-Feldman); see also Vossbrinck, 773 F.3d at
427–28 (finding the plaintiff’s request for the court to grant him title to his property was barred
by Rooker-Feldman but the plaintiff’s requests for damages suffered from the defendants’
alleged fraud was not barred by Rooker-Feldman because the reviewing federal court was not
required to review the state court judgment).
Plaintiff alleges Defendants knowingly presented deceptive and fraudulent filings with

inflated interest amounts in the State Court Action, (Am. Compl. ¶¶ 82, 89, 93, 104–05), and the
state court “merely ratified” Defendants’ conduct, (Pl.’s Opp’n 11). Taken together, Plaintiff’s
allegations “can be liberally construed as asserting fraud claims that are not barred by Rooker–
Feldman — because they seek damages from Defendants for injuries [plaintiff] suffered from

their alleged fraud.” See Vossbrinck, 773 F.3d at 427; Lindow, 2024 WL 4665181, at *6
(“Liberally construed, the plaintiff’s complaint reaches beyond the attack on the state court
judgment and may be read as a claim for damages stemming from the defendants’ allegedly
fraudulent conduct in connection with the foreclosure proceeding. Specifically, the plaintiff
claims that the defendants ‘knowingly presented false information’ in order to secure the
foreclosure judgment.”). Moreover, Plaintiff does not seek injunctive or declaratory relief
concerning Defendants’ interest in the Subject Property, only damages, and therefore, Rooker-
Feldman does not bar Plaintiff’s claims. Cf. Barlow v. Nationstar Mortg. LLC, No. 21-1483,
2022 WL 950949, at *2 (2d Cir. Mar. 30, 2022) (summary order) (finding that the plaintiff’s

requests for a temporary and permanent injunction against foreclosure “activity” and an
“accounting” of his loan payments were barred by Rooker-Feldman because the plaintiff’s
alleged injuries of extreme emotional distress, slander and lost equity were based on the state
court foreclosure judgment and the amount the state court determined he owed on his mortgage);
Vossbrinck, 773 F.3d at 427 (finding Rooker-Feldman barred the plaintiff’s requests for title and
tender of his property); Lindow, 2024 WL 4665181, at *5 (concluding the court lacked
jurisdiction over each claim for injunctive or declaratory relief concerning the plaintiff’s and the
defendants’ interest in the property).
c. SONYMA is not entitled to sovereign immunity
SONYMA argues Plaintiff’s claims against it are barred by sovereign immunity pursuant
to the Eleventh Amendment to the U.S. Constitution because it is an “an arm of the state.”

(SONYMA’s Mem. 5 (quoting Mancuso v. N. Y. State Thruway Auth., 86 F.3d 289, 292 (2d Cir.
1996).) In support of its claim for sovereign immunity, SONYMA applies a six-factor test from
the Second Circuit case Mancuso which provides in relevant part the following factors that a

court must consider in determining whether an entity is entitled to sovereign immunity:
(1) how the entity is referred to in the documents that created it; (2)
how the governing members of the entity are appointed; (3) how the
entity is funded; (4) whether the entity’s function is traditionally one
of local or state government; (5) whether the state has a veto power
over the entity’s actions; and (6) whether the entity’s obligations are
binding upon the state.

(Id. at 5–6 (quoting Mancuso, 86 F.3d at 293).) In addition, SONYMA contends that when those
factors “point in different directions,” (id. at 6), a court asks “(a) will allowing the entity to be
sued in federal court threaten the integrity of the state? and (b) does it expose the state treasury to
risk?” (id. (quoting Mancuso, 86 F.3d at 293)). SONYMA also contends that “[i]n cases that
remain close, the most important factor is whether the suit exposes the state treasury to a risk of
liability.” (Id. (quoting T.W. v. N.Y. State Bd. of L. Exam’rs (T.W. II), 110 F.4th 71, 80 (2d Cir.
2024), cert. denied, 145 S. Ct. 2700 (2025)).
With respect to the first factor — how the entity is referred to in the documents that
created it — SONYMA argues New York Public Authorities Law § 2403(1) created SONYMA
and states, “[t]he agency shall be a corporate governmental agency of the state, constituting a
political subdivision and public benefit corporation.” (SONYMA’s Mem. 6 (citing N.Y. Pub.
Auth. L.§ 2403(1)).) However, SONYMA acknowledges that “being a ‘political subdivision’ or
‘public benefit corporation’ does not automatically confer sovereign immunity or prevent it.”
(Id. (quoting Everston v. State of N.Y. Mort. Agency, No. 89-CV-7474, 1992 WL 6190, *4–5
(S.D.N.Y. Jan. 3, 1992).) SONYMA argues that even though the court in Everston found that
SONYMA was not an “arm of the state” for sovereign immunity purposes, the Everston holding
does not bind the Court in this case because it predates Mancuso and other precedential law and
does not discuss the risks of liability to the state treasury. (Id. at 6 n.1.) As to the second factor

— how the governing members of the entity are appointed — SONYMA contends that New
York Public Authorities Law § 2403(1) establishes how governing members are appointed and
states that governing members are appointed by high-ranking state officials for limited terms,
and as a result, this factor points to SONYMA being an arm of the state. (Id. at 6–7.) In
addressing the third factor — how the entity is funded — SONYMA argues its primary source of
funding is issuing bonds. (Id. at 7.) Occasionally the State of New York allocates a state
subsidy to SONYMA, but since the bonds are not the debt of the state, SONYMA contends this
factor “does not necessarily point to SONYMA being an arm of the state . . . .” (Id.) In
addressing the fourth factor — whether the entity’s function is traditionally one of local or state

government — SONYMA states its purpose, as set forth by New York law, “is to address a state-
wide issue pertaining to the inadequate supply of safe and sanitary dwelling accommodations,”
and this is primarily an issue of state, not local, government. (Id. at 7–8.) As to the fifth factor
— whether the state has a veto power over the entity’s actions — SONYMA argues it is
governed by state officials, pursuant to New York Public Authorities Law § 2403(1), and
therefore it is “not independent of the state.” (Id. at 8.) SONYMA contends that even though no
state officials have “veto” power over it, tight regulations and oversight by the state such as state
laws governing SONYMA, filing annual reports with various state entities, and review by the
Comptroller of the State of New York support the conclusion that SONYMA is an arm of the
state. (Id.) Finally, in addressing the sixth factor — whether the entity’s obligations are binding

upon the state — SONYMA argues the state “could be liable” to indemnify SONMYA in this
case under the indemnity provision in New York Public Authorities Law § 2404(27)(c). (Id. at
9.) However, the statute exempts the state from liability for any fraud or other “actions
[committed by SONYMA] in bad faith, gross negligence or willful misconduct.” (Id. (citing

N.Y. Pub. Auth. L. § 2404(27)(c).) SONYMA argues that there is an “unresolved risk the state
would have to indemnify SONYMA for the costs of this action if SONYMA itself did not have
adequate funding.” (Id.) Although SONYMA notes that New York Public Authorities Law §
2410 provides that the State is not liable for “bonds, notes, insurance commitments or contracts
or development corporation credit support and other obligations of [SONYMA],” (id. (quoting
N.Y. Pub. Auth. L. § 2410)), it argues that this language was “intended to refer to contractual
and legal obligations of SONYMA” and does not address the issue of judgments against
SONYMA, and therefore, the Court may have to “harmonize” New York Public Authorities Law
Sections 2404(27)(c) and 2410. (Id.) Accordingly, SONYMA argues that Plaintiff’s claims

“expose[] the state treasury to a risk of liability,” and this factor supports a finding in favor of
SONYMA being an arm of the state. (Id. at 10 (quoting T.W. II, 110 F.4th at 80).)
In addition, SONYMA contends that since the second, fourth, fifth and sixth Mancuso
factors suggest that SONYMA is an arm of the state for the purposes of state sovereign immunity
and factors one and three weigh against it, the Court must look to the two aims of the Eleventh
Amendment: “(a) will allowing the entity to be sued in federal court threaten the integrity of the
state? and (b) does it expose the state treasury to risk?’” (Id. (quoting Mancuso, 86 F.3d at 293).)
In addressing the first question — will allowing the entity to be sued in federal court threaten the
integrity of the state? — SONYMA argues that the state’s involvement in SONYMA’s business,
such as its appointment of governing officials and regulation of SONYMA’s books and records,

puts the integrity of the state at risk if SONYMA is denied state sovereign immunity. (Id.) In
addressing the second question — does it expose the state treasury to risk? — SONYMA
contends the state treasury is at risk. (Id.) SONYMA argues that Plaintiff fails to address the
treasury’s potential liability for SONYMA’s legal fees and expenses if SONYMA prevails in the

lawsuit. (SONYMA’s Reply 1–2.) Since the answer to both questions is yes, SONYMA argues
the Court should therefore find that SONYMA is an arm of the state and entitled to sovereign
immunity. (SONYMA’s Mem. 10.)
Plaintiff argues that SONYMA is not protected by sovereign immunity. (Pl.’s Opp’n 38–
41.) Citing to “SONYMA’s own admission [that] all six factors do not point towards SONYMA
being an ‘arm of the state’,” (id. at 39 (citing SONYMA’s Mem.)), Plaintiff does not address the
six Mancuso factors and only addresses the “two reasons for the Eleventh Amendment: (1)
protecting the dignity of the State, and (2) preserving the state treasury,” (id. (quoting Woods v.
Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 240 (2d Cir. 2006))). First, Plaintiff

argues that under a “plain reading” of New York Public Authorities Law § 2410 the state is not
liable for a court judgment or money judgment against SONYMA because the statute’s language
excludes liability for “other obligations.” (Id. at 40 (quoting N.Y. Pub. Auth. L. § 2410).)
Plaintiff argues the court in Everston concluded that a money judgment fell into the category of
“other obligations.” (Id. (citing 1992 WL 6190 at *4.).) Second, Plaintiff argues that a “plain
reading” of New York Public Authorities Law § 2410 and “consideration of Title 17
[SONYMA’s enabling statutes] as a whole” shows that the state treasury would not pay for a
court or money judgment against SONYMA. (Id. at 41.) Finally, Plaintiff argues the
“vulnerability of the State’s purse [is] the most salient factor in Eleventh Amendment
determinations,” and therefore the Court should not afford SONYMA sovereign immunity. (Id.

at 40–41 (quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48 (1994) (citations
omitted)).)
“The Eleventh Amendment generally bars suits in federal court by private individuals
against non-consenting states[,]” and precludes “actions in which a state is actually named as a

defendant, but also certain actions against state agents and instrumentalities, including actions for
the recovery of money from the state.” Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 134
(2d Cir. 2015) (first citing Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990);
then citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); and then citing Hans v.
Louisiana, 134 U.S. 1, 15 (1890)). “As a general matter, states enjoy sovereign immunity from
suit in federal court, even if the claim arises under federal law.” KM Enters., Inc. v. McDonald,
518 F. App’x 12, 13 (2d Cir. 2013) (first citing U.S. Const. amend. XI; and then citing Alden v.
Maine, 527 U.S. 706, 727–28 (1999)). States may only be sued in federal court when they have
waived their sovereign immunity, Congress has acted to abrogate state sovereign immunity

pursuant to Section 5 of the Fourteenth Amendment, or the plaintiff is suing a state official in his
or her official capacity for prospective injunctive relief from an ongoing constitutional violation.
See U.S. Const. amend. XI; Thomas v. Martin-Gibbons, 857 F. App’x 36, 37 (2d Cir. 2021)
(“The Eleventh Amendment precludes suits against a state unless the state expressly waives its
immunity or Congress abrogates that immunity.” (citing CSX Transp., Inc. v. N.Y. State Off. of
Real Prop. Servs., 306 F.3d 87, 95 (2d Cir. 2002))); Va. Off. for Prot. & Advoc. v. Stewart, 563
U.S. 247, 255 (2011); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989); Mary Jo C. v.
N.Y. State & Loc. Ret. Sys., 707 F.3d 144, 152 (2d Cir. 2013); Woods, 466 F.3d at 236. “[T]he
Eleventh Amendment applies to a suit for damages brought against an entity that is fairly
considered to be an ‘arm of the state.’” T.W. II, 110 F.4th at 80 (quoting Mancuso, 86 F.3d at

292); Mary Jo C., 707 F.3d at 152 (“[T]he immunity recognized by the Eleventh Amendment
extends beyond the states themselves to state agents and state instrumentalities that are,
effectively, arms of a state (internal quotation marks omitted) (quoting Woods, 466 F.3d at 236)).

“Whether an entity is ‘an arm of the State . . . is a question of federal law’ that ‘can be
answered only after considering the provisions of state law that define the agency’s character.’”
Galette v. N.J. Transit Corp., 607 U.S. ----, ----, 146 S. Ct. 854, 865 (2026) (quoting Regents of
Univ. of Cal., 519 U.S. at 429, n. 5). The Supreme Court has a long line of cases that analyze
whether a state instrumentality is independent or whether it is an “arm-of-the-State.” See id. at
866–71. In reviewing its jurisprudence, the court in Galette concluded that its “precedents have
consistently, and predominantly, examined whether the State structured the entity as a legally
separate entity liable for its own judgments.” Id. at 868. The Supreme Court then used three
separate elements to determine whether an entity is an arm of the state: whether the state: (1)

structured the entity as “a legally separate entity”; (2) was “formally liable” for any of the
entity’s debts or liabilities; and (3) exerted control over the entity. Id. at 866–71. First, a
corporate form or other structure may “signal[] the State has created a legally separate entity”
including designation by law that the entity was a “separate legal entity,” id. at 868 (quoting
Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 401 (1979)), or a “local
public entity,” id. at 869 (quoting Moor v. Alameda Cnty., 411 U.S. 693, 719 (1973)). However,
regardless of the structure, the “ultimate question remains whether the State structured the entity
as part of itself or as legally independent.” Id. Second, the Supreme Court stated formal liability
for judgments indicated that the “entity is more likely to be an arm of the State because its
liabilities necessarily undermine the State’s ability to make choices about how to allocate the

State fisc.” Id. The Supreme Court noted that an entity’s practical financial relationship differed
from formal legal liability. Id. It further explained that a State “cannot imbue an entity with its
immunity simply” through indemnifying the entity, id. (citing Lewis v. Clarke, 581 U.S. 155, 165
(2017)), nor does a state’s history of subsidizing the entity confer sovereign immunity, even

when the funding was a “significant amount,” id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 280 (1977)). Third, the Supreme Court stated that the degree of control
exerted over the entity may be considered when determining if the entity is an arm of the state,
but cautioned courts against reliance on the element of control since it “is not especially
probative because ‘ultimate control of every state-created entity resides with the State,’ even
those that are not arms of the State.” Id. (quoting Hess, 513 U.S. at 47).
As discussed above, in Mancuso, the Second Circuit outlined a six-factor inquiry to
assess whether an entity is an arm of the state. T.W. II, 110 F.4th at 80 (quoting Mancuso, 86
F.3d at 293). If the factors “point in different directions, a court asks ‘(a) will allowing the entity

to be sued in federal court threaten the integrity of the state? and (b) does it expose the state
treasury to risk?’” Id. (quoting Mancuso, 86 F.3d at 293). However, in a close case, “the most
important factor is whether the suit exposes the state treasury to a risk of liability.” Id. (citing
Mancuso, 86 F.3d at 293).
Focusing on the elements set forth in Galette, while also considering the Mancuso
factors, the Court finds that SONYMA is not an arm of the state for the purposes of sovereign
immunity under the Eleventh Amendment.
First, the State of New York structured SONYMA as a legally separate, corporate entity.
New York Public Authorities Law § 2403(1) established SONYMA as “a corporate
governmental agency of the state, constituting a political subdivision and public benefit

corporation.” N.Y. Pub. Auth. L. § 2403(1). Consistent with that label, SONYMA has “typical
corporate powers,” Galette, 146 S. Ct. at 871, including to “sue or be sued,” “make and execute
contracts,” “make and alter by-laws for its organization and internal management,” and “acquire,
hold and dispose of real and personal property for its corporate purposes,” N.Y. Pub. Auth. L. §§

2404(1), (3)–(5) (emphasis added). See Galette, 146 S. Ct. at 871 (finding NJ Transit was a
separate legal entity because its enabling statute created it as a “body corporate and politic with
corporate succession” and it possessed typical corporate powers including the ability to sue or be
sued, enter contracts, acquire property, make bylaws, and more); Everston, 1992 WL 6190, at *4
(interpreting SONYMA’s enabling statute and finding its designation “as a ‘political
subdivision’ weigh[ed] against application of Eleventh Amendment immunity.” (quoting N.Y.
Pub. Auth. L. § 2403(1))). SONYMA’s corporate status serves as “strong evidence” it is not an
arm of the state. Galette, 146 S. Ct. at 871 (first citing Bank of U.S. v. Planters’ Bank of Ga., 22
U.S. 904, 907 (1824); and then citing Hess, 513 U.S. at 44–46).

Second, the State is not formally liable for judgments against SONYMA under New York
Public Authorities Law § 2410 which specifies that, “[t]he bonds, notes, insurance commitments
or contracts or development corporation credit support and other obligations of the agency shall
not be a debt of the state of New York.” N.Y. Pub. Auth. L. § 2410 (emphasis added); see
Galette, 146 S. Ct. at 871 (finding New Jersey was not formally liable for NJ Transit’s debts or
liabilities under similar statutory language: “[n]o debt or liability of the corporation shall be
deemed or construed to create or constitute a debt, liability, or a loan or pledge of the credit of
the State.” (emphasis added) (quoting N. J. Stat. § 27:25–17); Everston, 1992 WL 6190, at *4
(finding a “money judgment” fell into the category of “other obligations” under New York
Public Authorities Law § 2410 because, despite its “somewhat ambiguous” language, in reading

the provision as a whole, “it becomes clear that the state did not intend to assume liability for
money judgments rendered against SONYMA”). SONYMA argues that Section 2410’s
language “refer[s] to contractual and legal obligations of SONYMA,” and could possibly not
apply to “the issue of judgments” because the State could be required to indemnify SONYMA

under New York Public Authorities Law § 2404(27)(c), which provides that the State will:
indemnify . . . [SONYMA] from and against any and all liability,
loss, damage, interest, judgments and liens growing out of, and any
and all costs and expenses (including, but not limited to, counsel
fees and disbursements) arising out of or incurred in connection with
any and all claims, demands, suits, actions or proceedings which
may be made or brought against it . . . except for fraudulent acts,
actions taken in bad faith, gross negligence or willful misconduct.

(SONYMA’s Mem. 9 (citing N.Y. Pub. Auth. L. § 2404(27)(c)).) The Court is not persuaded by
this argument because indemnification does not “imbue an entity with its immunity.” Galette,
146 S. Ct. at 869; Lewis, 581 U.S. at 165 (“The critical inquiry is who may be legally bound by
the court’s adverse judgment, not who will ultimately pick up the tab.”) Moreover, under a plain
reading of New York Public Authorities Law § 2404(27)(c), “indemnification is not a certainty,”
Lewis, 581 U.S. at 166, because the state will not be indemnified should the Court determine that
SONYMA engaged in fraud or “bad faith, gross negligence or willful misconduct,” (N.Y. Pub.
Auth. L. § 2404(27)(c)).13 Lewis, 581 U.S. at 166 (finding indemnification provision was
insufficient to extend a sovereign immunity defense against an employee in his individual
capacity and that indemnification was “not a certainty” because “wanton, reckless, or malicious”
activity was exempted under statute (citation omitted)).

13 SONYMA argues that Everston “did not discuss the potential risk of liability to the
state treasury should New York Public Authorities Law § 2404(27)(c) be held applicable” or
apply the Mancuso factors in determining SONYMA was not an arm of the state for the purposes
of state sovereign immunity, but those distinctions are immaterial. (See SONYMA’s Mem. 6
n.1). Supreme Court jurisprudence includes “a long line of cases in which [the Supreme Court]
has found state-created corporations that are formally liable for their own judgments not to be
arms of the States that created them,” Galette, 146 S. Ct. at 875, and as discussed in this Section,
indemnification does not “imbue an entity with its immunity,” id. at 869.
Third, the Court considers, but does not weigh heavily, the control that the state exerts
over SONYMA and finds that New York exerts some, but not a significant amount, of control

over SONYMA. SONYMA’s directors are appointed by high-ranking state officials including
the comptroller and the governor, see N.Y. Pub. Auth. L. § 2403(1), state law dictates the
amount of bonds SONYMA may issue annually, id. § 2407, SONYMA must file annual reports
with various state officials and executives, id. §§ 2419, 2419-a, and the State Comptroller may
examine SONYMA’s books and accounts, id. § 2415(1). However, as SONYMA admits, the
State does not possess veto power over any of SONYMA’s actions, (SONYMA’s Mem. 8), and
this demonstrates some amount of independence. See T.W. v. N.Y. State Bd. of L. Exam’rs (T.W.
I), No. 16-CV-3029, 2022 WL 2819092, at *4 (E.D.N.Y. July 19, 2022) (discussing Mancuso
factors and finding factor five — whether the state has a veto power over the entity — weighed

against finding sovereign immunity because the state did not have veto power), aff’d, 110 F.4th
71 (2d Cir. 2024). Accordingly, New York exerts some, but not significant, control over
SONYMA because it has appointment and oversight powers but lacks veto power. Cf. Galette,
146 S. Ct. at 871–72 (finding that New Jersey exerted “a substantial amount of control over NJ
Transit” such as the governor holding appointment and removal powers over the board of NJ
Transit, gubernatorial veto power, and legislative veto power over some eminent domain
actions). Regardless, the Court does not weigh this element heavily because “ultimate control of
every state-created entity resides with the State, for the State may destroy or reshape any unit it
creates,” Hess, 513 U.S. at 47, SONYMA is a legally separate corporate body, and the State is
not formally liable for its judgments. See Galette, 146 S. Ct. at 871–72 (finding that despite New

Jersey exerting “a substantial amount of control over NJ Transit,” this level of control did not
“meaningfully affect NJ Transit’s status, given the fact that it is a legally separate corporation
and is responsible for its own judgments”). As a result, SONYMA is not an “arm of the state,”
and is therefore not entitled to sovereign immunity under the Eleventh Amendment.

d. All of Plaintiff’s claims are time-barred and equitable tolling does not apply

The Court considers the parties’ arguments regarding statutes of limitations and equitable
tolling and finds that all of Plaintiff’s claims are time-barred, and equitable tolling is
inapplicable.
i. The statute of limitations for each claim has expired
Defendants move to dismiss with prejudice all of Plaintiff’s claims on the grounds that
the statutes of limitations have expired. (SONYMA’s Mem. 1, 18–20; M&T Bank’s Mem. 5–6.)
In support, Defendants argue Plaintiff’s claims accrued upon the filing of the Referee’s Report of
Sale on April 11, 2018.14 (SONYMA’s Reply 3; M&T Bank’s Mem. 2).
Plaintiff acknowledges that the statutes of limitations have expired for his claims, (see
Am. Compl. ¶¶ 165–70 (pleading tolling of statutes of limitations)), but argues that his claims
are timely under equitable tolling and fraudulent concealment doctrines because they were filed
within one year after discovering “Defendants’ self-concealing fraud,” (Pl.’s Opp’n 21–24).
Claims under the FDCPA must be commenced “within one year from the date on which
the violation occurs.” 15 U.S.C. § 1692k(d); Benzemann v. Houslanger & Assocs., PLLC, 924
F.3d 73, 78 (2d Cir. 2019) (“[A]n FDCPA claim must be brought ‘within one year from the date
on which the violation occurs.’” (quoting id.)). “An FDCPA violation occurs ‘when an
individual is injured by the alleged unlawful conduct.’” Makhnevich v. Novick Edelstein

14 The Court notes the Referee’s Report of Sale was filed on April 23, 2018. Referee’s
Report of Sale, No. 501233/2015.
Pomerantz PC, No. 23-202, 2024 WL 2207061, at *1 (2d Cir. May 16, 2024) (summary order)
(quoting Benzemann, 924 F.3d at 83).

A GBL § 349 claim must be brought within three years from the date on which the
plaintiff was first injured by the allegedly deceptive act or practice. In re Columbia Coll.
Rankings Action, No. 22-CV-5945, 2024 WL 1312511, at *10 (S.D.N.Y. Mar. 26, 2024) (stating
GBL § 349 claims “must be commenced within three years of the date of accrual, which occurs
when the plaintiff is injured by the deceptive act or practice that violated the statute” (quoting
Michelo v. Nat’l Collegiate Student Loan Tr. 2007-2, 419 F. Supp. 3d 668, 699 (S.D.N.Y.
2019))); see also Rodriguez v. It’s Just Lunch, Int’l, 300 F.R.D. 125, 149 n.8 (S.D.N.Y. 2014)
(holding the three-year statute of limitations barred the plaintiffs’ GBL § 349 claims when the
plaintiffs alleged fraud-based conduct (first citing Charles Atlas, Ltd. v. DC Comics, Inc., 112 F.

Supp. 2d 330, 334 n.7 (S.D.N.Y. 2000); and then citing N.Y. C.P.L.R. § 214(2))).
A civil RICO claim must be brought within four years of accrual, which occurs “when
the plaintiff discovers or should have discovered the RICO injury.” Cohen v. S.A.C. Trading
Corp., 711 F.3d 353, 361 (2d Cir. 2013) (first quoting In re Merrill Lynch Ltd. P’ships Litig.,
154 F.3d 56, 58 (2d Cir. 1998); and then citing Rotella v. Wood, 528 U.S. 549, 555 (2000)).
Claims of negligence and gross negligence must be brought within three years from the
date of accrual, which is the date of the injury. See Shukla v. Meta Platforms Inc., No. 23-CV-
10150, 2024 WL 4108563, at *13 (S.D.N.Y. July 17, 2024) (finding the plaintiff’s negligence
claim was time-barred as construed under either N.Y. C.P.L.R. § 214(4) for injury to property or
N.Y. C.P.L.R. § 214(5) for personal injury because both had three-year statutes of limitations

(first quoting Vaccaro v. Bank of Am., N.A., No. 13-CV-2484, 2016 WL 4926201, at *6 n.12
(S.D.N.Y. Sep. 15, 2016); and then citing N.Y. C.P.L.R. § 214)), report and recommendation
adopted, 2024 WL 3634796 (S.D.N.Y. Aug. 2, 2024), reconsideration denied sub nom., Shukla
v. Deloitte Consulting LLP, 2024 WL 5162062 (S.D.N.Y. Oct. 28, 2024), appeal dismissed, No.

24-3126 (2d Cir. Jan. 14, 2025); Spinnato v. Unity of Omaha Life Ins., 322 F. Supp. 3d 377, 391–
92 (E.D.N.Y. 2018) (applying three-year statute of limitations for negligence and gross
negligence claims).
A cause of action for legal malpractice must be brought within three years from the time
of accrual. Campbell v. L. Off. of Solomon Rosengarten, 238 N.Y.S.3d 679, 680 (App. Div.
2025) (citing N.Y. C.P.L.R. §§ 203(a), 214(6)). An action to recover damages for attorney
deceit under Judiciary Law § 487 may be subject to a six-year statute of limitations. Catsiapis v.
Pardalis & Nohavicka, LLP, 194 N.Y.S.3d 522, 523 (App. Div. 2023) (first citing N.Y. C.P.L.R.
§ 213(1) (providing a six-year statute of limitations for “an action for which no limitation is

specifically prescribed by law”); and then citing Melcher v. Greenberg Traurig, LLP, 23 N.Y.3d
10, 15 (2014)); see Melcher, 23 N.Y.3d at 15 (finding claims for attorney deceit are subject to
the six-year statute of limitations under N.Y. C.P.L.R. § 213(1)). However, “[t]he statute of
limitations for a cause of action alleging legal malpractice, and a cause of action alleging a
violation of Judiciary Law § 487 arising out of the same transactions as the legal malpractice
cause of action, is three years.” Pergament v. Gov’t Emps. Ins., --- N.Y.S.3d ---, ---, 2026 WL
157439, at *2 (App. Div. Jan. 21, 2026) (first quoting Fraumeni v. L. Firm of Jonathan
D’Agostino, P.C., 187 N.Y.S.3d 99, 101 (App. Div. 2023); then citing N.Y. C.P.L.R. § 214(6);
and then citing Farage v. Ehrenberg, 996 N.Y.S.2d 646 (App. Div. 2014)); see Catsiapis, 194
N.Y.S.3d at 523 (dismissing Judiciary Law § 487 as barred by three-year statute of limitations

because the claim was “premised on the same facts as the legal malpractice cause of action and
[did] not allege distinct damages”) (citations omitted)); Farage, 996 N.Y.S.2d at 651–52, 655
(distinguishing Melcher, 23 N.Y.3d 10, because it did not involve a claim of legal malpractice
and finding N.Y. § C.P.L.R. 214(6) governed any claims of legal malpractice, including

Judiciary Law § 487, with a three-year statute of limitations); see also N.Y. C.P.L.R. § 214(6)
(providing a three-year statute of limitations to recover damages for “malpractice, other than
medical, dental or podiatric malpractice”).
The statute of limitations for claims of unjust enrichment vary depending on the nature of
the claim and the relief sought: unjust enrichment claims seeking monetary damages have a
three-year statute of limitations.15 St. Martinus Univ., N.V. v. SMU LLC, No. 21-CV-1888, 2023
WL 2969284, at *12 (E.D.N.Y. Mar. 9, 2023); Bilalov v. Gref, No. 20-CV-9153, 2022 WL

15 Unjust enrichment is not explicitly named in the New York statutes of limitations, and
courts in the Second Circuit have cited to different New York Civil Practice Law and Rules
(“N.Y. C.P.L.R.”) statutes for unjust enrichment claims based on the underlying theory,
accompanying causes of action, and type of relief sought. See Nwoye v. Obama, No. 22-CV-
1791, 2023 WL 4631712, at *14 (S.D.N.Y. July 20, 2023) (discussing six-year statute of
limitations period for unjust enrichment claim under N.Y. C.P.L.R. § 213(2) for breach of
contract claims (citing Seidenfeld v. Zaltz, 80 N.Y.S.3d 311, 311 (App. Div. 2018))), report and
recommendation adopted, 2023 WL 5164156 (S.D.N.Y. Aug. 11, 2023), aff’d, No. 23-1178,
2024 WL 911753 (2d Cir. Mar. 4, 2024) (summary order); see also Oppedisano v. Zur, No. 24-
2955, 2025 WL 2682227, at *2 (2d Cir. Sep. 19, 2025) (summary order) (applying catchall six-
year limitations period in N.Y. C.P.L.R. § 213(1) for actions that do not otherwise have a
specific limitations period proscribed by statute); Yeend v. Akima Glob. Servs., LLC, No. 20-CV-
1281, 2025 WL 959968, at *18 (N.D.N.Y. Mar. 31, 2025) (“Courts within the Second Circuit
apply a three-year or six-year statute of limitations to unjust enrichment claims depending on the
substantive remedy sought by the plaintiff. If monetary relief is sought, a three-year statute of
limitations applies. If an equitable remedy is sought, a six-year statute of limitations applies.”
(citing Bascuñan v. Elsaca, No. 15-CV-2009, 2021 WL 3540315, at *6, 6 n.5 (S.D.N.Y. Aug.
11, 2021))), appeal docketed, No. 25-2209 (2d Cir. Sep. 15, 2025); City of Almaty v. Sater, 503
F. Supp. 3d 51, 65 (S.D.N.Y. 2020) (discussing split among New York’s intermediate appellate
courts with the Second Department applying a three-year statute of limitations for unjust
enrichment claims under N.Y. C.P.L.R. § 214(3) when a plaintiff seeks monetary relief and a
six-year limitations period when a plaintiff seeks equitable relief under N.Y. C.P.L.R. §§ 213(1)–
(2), and the First Department emphasizing the “nature of the claim” and applying a six-year
limitations period when a claim for unjust enrichment rests on facts that also support another
claim governed by a six-year statute of limitations, even when the plaintiff seeks damages).
4225968, at *10 (S.D.N.Y. Sep. 13, 2022) (applying three-year statute of limitations to unjust
enrichment claim for “wrongful taking of [ ] shares” and applying six-year statute of limitations

to claims for fraud and conspiracy to commit fraud for the same underlying conduct); Lia v.
Saporito, 909 F. Supp. 2d 149, 167 (E.D.N.Y. 2012) (explaining unjust enrichment claims
seeking monetary damages are governed by the three-year statute of limitations under N.Y.
C.P.L.R. § 214(3)), aff’d, 541 F. App’x 71 (2d Cir. 2013); but see St. Martinus Univ., 2023 WL
2969284, at *12 (describing a split among the intermediate New York appellate courts under
what circumstances to apply the three-year or six-year statute of limitations period to an unjust
enrichment claim (citing City of Almaty v. Sater, 503 F. Supp. 3d 51, 64–66 (S.D.N.Y. 2020))).
Claims for conversion must be brought within three years from the occurrence of the
conversion or the unjust act. Su v. Hwang, No. 24-653, 2025 WL 1983182, at *4 (2d Cir. July

17, 2025) (summary order) (citing N.Y. C.P.L.R. § 214(3)); Bilalov, 2022 WL 4225968, at *10
(first citing N.Y. C.P.L.R. § 214(3); and then citing Bill Diodato Photography LLC v. Avon
Prods., Inc., No. 12-CV-847, 2012 WL 3240428, at *11 (S.D.N.Y. Aug. 7, 2012)).
A cause of action for prima facie tort must be brought within three years from the date of
injury if the plaintiff seeks damages for economic loss. Watkins v. Town of Webster, 592 F.
Supp. 3d 96, 129–30 (W.D.N.Y. 2022) (first citing Riddell Sports Inc. v. Brooks, 872 F. Supp.
73, 75–76 (S.D.N.Y. 1995); and then citing N.Y. C.P.L.R. § 214).
At the latest, Plaintiff’s alleged injury stems from the miscalculations in the Referee’s
Report of Sale for the State Court Action, which was filed on April 23, 2018. Plaintiff admits
Defendants’ “fraudulent miscalculation” “becomes discoverable” with the Referee’s Report of

Sale, and “the inflated interest figure is disclosed in the [Referee’s] Report of Sale.” (Pl.’s
Opp’n 22–23.) Thus, Plaintiff’s claims began accruing on that date, which is seven years before
Plaintiff commenced this action. In addition, Plaintiff’s claim for unjust enrichment against
SONYMA seeks $5,000,000 in monetary damages for the overcompensation of SONYMA from

the alleged interest miscalculation. (Am. Compl. ¶¶ 149, 152.) Because the relief sought is
monetary damages, and not equitable relief, the three-year statute of limitations applies. St.
Martinus Univ., 2023 WL 2969284, at *12 (applying three-year statute of limitations for unjust
enrichment claim seeking monetary damages). The longest statute of limitations for any of
Plaintiff’s claims is four years for the civil RICO claim, and therefore all of Plaintiff’s claims are
time-barred.
ii. Equitable tolling does not apply to Plaintiff’s claims
Plaintiff alleges the statutes of limitations on his claims should be tolled pursuant to the
discovery rule, (Am. Compl. ¶¶ 165–67), and equitable tolling and fraudulent concealment, (id.
¶¶ 168–70).16 (Pl.’s Opp’n 21–14.) First, Plaintiff contends the discovery rule applies to all

16 In the Amended Complaint, Plaintiff generally argues for tolling the statutes of
limitations on his causes of action and pleads “discovery rule tolling” and “equitable estoppel
(fraudulent concealment tolling).” (Am. Compl. ¶¶ 165–70.) In his Opposition, Plaintiff only
discusses fraudulent concealment and equitable tolling. (Pl.’s Opp’n 21.) In their motion papers,
SONYMA and M&T Bank discuss discovery rule tolling and equitable tolling based on
fraudulent concealment. (SONYMA’s Mem. 18–22; M&T Bank’s Mem. 6–10.)
The Second Circuit has stated that the terminology in this area is not always used with
precision. See Poulard v. Delphin, No. 24-3015, 2025 WL 1417664, at *3 (2d Cir. May 16,
2025) (summary order) (“New York courts and the courts of this Circuit variously use the terms
‘fraudulent concealment,’ ‘equitable tolling’ and ‘equitable estoppel,’ not always with clear
delineation.” (quoting Koral v. Saunders, 36 F.4th 400, 409 (2d Cir. 2022))); Ellul v.
Congregation of Christian Bros., 774 F.3d 791, 801 (2d Cir. 2014) (“The distinction between
equitable tolling and the diligence-discovery rule has not always been clear in our caselaw.”);
Pearl v. City of Long Beach, 296 F.3d 76, 81 (2d Cir. 2002) (“The initial difficulty encountered
in trying to compare accrual, governed by federal law, with tolling, governed by state law, is that
the reported decisions of the federal and state courts do not always mean the same thing by their
use of these phrases, and phrases to which some judges ascribe different meanings are used
interchangeably by other judges.”). In Ellul, the Second Circuit clarified that “the distinction is
that the diligence-discovery rule delays the date of accrual where the plaintiff ‘is blamelessly
claims because he could not have discovered the fraudulent scheme through reasonable
diligence, and he did not know the essential elements of his claims until speaking with an

attorney in 2024.17 (Am. Compl. ¶¶ 165–67.) Second, Plaintiff contends that equitable tolling

ignorant of the existence or cause of his injury,’ while the doctrine of equitable tolling applies
after the claim has already accrued, suspending the statute of limitations ‘to prevent unfairness to
a diligent plaintiff.’” Ellul, 774 F.3d at 801 (first quoting Barrett v. United States, 689 F.2d 324,
327 (2d Cir. 1982); and then quoting Haekal v. Refco, Inc., 198 F.3d 37, 43 (2d Cir. 1999)).
Fraudulent concealment often incorporates a discovery inquiry into the tolling analysis. See,
e.g., Saint-Jean v. Emigrant Mortg. Co., 129 F.4th 124, 143 (2d Cir. 2025) (describing fraudulent
concealment as “either that the defendant took affirmative steps to prevent the plaintiff’s
discovery of his claim or injury or that the wrong itself was of such a nature as to be self-
concealing.” (quoting New York v. Hendrickson Bros., 840 F.2d 1065, 1083 (2d Cir. 1988))),
cert. denied, --- S. Ct. ---, 2026 WL 79895 (Jan. 12, 2026); SL-x IP S.à.r.l. v. Merrill Lynch,
Pierce, Fenner & Smith Inc., No. 21-2697, 2023 WL 2620041, at *3 (2d Cir. Mar. 24, 2023)
(summary order) (quoting same); Koch v. Christie’s Int’l PLC, 699 F.3d 141, 157 (2d Cir. 2012)
(a plaintiff must show “(1) the defendant wrongfully concealed material facts relating to [the]
defendant’s wrongdoing; (2) the concealment prevented [the] plaintiff’s ‘discovery of the nature
of the claim within the limitations period’; and (3) [the] plaintiff exercised due diligence in
pursuing the discovery of the claim during the period [the] plaintiff seeks to have tolled.”
(quoting Corcoran v. N.Y. Power Auth., 202 F.3d 530, 543 (2d Cir. 1999))).
Although Plaintiff pleads discovery rule tolling, Plaintiff does not provide any facts or
argument to support delaying the date of accrual. In fact, Plaintiff admits that Defendants’
alleged scheme had “become[] discoverable” upon the filing of the Referee’s Report of Sale on
April 23, 2018, (Pl.’s Opp’n 22), and the interest calculations were “revealed,” (Am. Compl. ¶
63), then. Plaintiff’s theory in support of tolling therefore turns on when a reasonably diligent
plaintiff would have been aware of the alleged misconduct, applying tolling after the date of
accrual and “suspending the statute of limitations to prevent unfairness to a diligent plaintiff.”
See Ellul, 774 F.3d at 801 (internal citation and quotation marks omitted). Accordingly, the
Court analyzes Plaintiff’s arguments under the fraudulent concealment and equitable tolling
doctrines without discussing the discovery rule doctrine.

17 Although Plaintiff alleges in the Amended Complaint that he did not know the
essential elements of his claims until speaking with an attorney in 2024, in his Opposition,
Plaintiff alleges a different discovery date of March of 2025. (Pl.’s Opp’n 23.) Because the
Court finds equitable tolling does not apply, Plaintiff’s conflicting pleading is immaterial to the
Court’s analysis.
suspends the applicable statutes of limitations for all claims18 up until the commencement of this
action because Defendants “affirmatively concealed from Plaintiff and the other members of the

[c]lass the[ir] fraudulent scheme.” (Id. ¶¶ 168–70; see Pl.’s Opp’n 22–24.) In support, Plaintiff
states that Defendants’ improper interest calculation “is not visible to the plaintiff-borrower, the
court, nor subordinate lienholders . . . [until] after the foreclosure auction has occurred and
Defendants file the Report of Sale.”19 (Pl.’s Opp’n 22.) Third, Plaintiff argues Defendants
“exercise control” over the Report of Sale and “there is no contemporaneous judicial or
adversarial review of the interest calculations before they are used for determining the existence
and distribution of surplus proceeds.” (Id.) Plaintiff argues that the “delayed disclosure [ ]
functions as a post-hoc concealment tool,” and Plaintiff is “left unaware that Defendants
engineered an inflated judgment” until after the sale of the Subject Property, and “the surplus [ ]

has already been suppressed.” (Id. at 22–23.) Fourth, Plaintiff argues that courts in the Southern
District of New York recognize equitable tolling of FDCPA claims when defendant-companies
and attorneys file false affidavits because the affidavits are “inherently self-concealing.” (Id. at
23.) Plaintiff therefore contends that the court-appointed referee’s affidavit attached to the
Referee’s Report of Sale provided “the guise of legitimacy” which Plaintiff had “no reason to

18 Plaintiff specifies in one paragraph that equitable tolling and fraudulent concealment
toll his FDCPA and GBL § 349 claims, (Pl.’s Opp’n 22), but also argues that the equitable
tolling doctrine “applies to Plaintiff’s claims here” and to “the instant action” in general. (Id. at
21–22.) Accordingly, the Court considers Plaintiff’s equitable tolling and fraudulent
concealment arguments as applying to all claims.

19 In the Amended Complaint, Plaintiff states that “the court-appointed referee issues a
Referee Report of Sale” and calls the report the “Referee’s Report.” (Am. Compl. ¶ 30.)
However, in his Opposition, Plaintiff alleges Defendants filed the Report of Sale, (Pl.’s Opp’n
22), and Defendant Schiller Law filed the Report of Sale, (id. at 23), but then calls it the
“Referee’s Report” or “Report of Sale,” (see id. at 11–12).
question” “until Plaintiff[] first discovered it when consulting with his attorney” and then he filed
the claims within a year. (Id. at 23–24.) Finally, Plaintiff argues that “any lack of diligence on

[his] part is due to Defendants’ own fraudulent scheme.” (Id. at 24.)
Defendants argue that the doctrine of equitable tolling, including both the discovery rule
and fraudulent concealment, do not apply to any of Plaintiff’s claims. (SONYMA’s Mem. 18–
22; M&T Bank’s Mem. 6–10.) First, Defendants argue that Plaintiff has failed to satisfy the
elements of equitable tolling and fraudulent concealment tolling because he has failed to allege
“a single fact that [shows] M&T Bank took any affirmative steps to conceal the existence of the
alleged unlawful conduct,” (M&T Bank’s Mem. 9), or “any concealment on the part of
SONYMA,” (SONYMA’s Mem. 20). Defendants cite to Plaintiff’s own allegations in the
Amended Complaint to demonstrate that the Referee’s Report of Sale “revealed” or “contains the

complained of interest calculations,” and therefore nothing was “inherently self-concealing.”
(SONYMA’s Mem. 20.) SONYMA also argues that Plaintiff at least had inquiry notice of the
claims because Plaintiff had access to the documents in the State Court Action and any failure to
discover the alleged “fraudulent scheme” is “solely attributable to lack of diligence on Plaintiff’s
part.” (Id. at 21–22.) Second, Defendants argue Plaintiff cannot invoke discovery rule tolling
for his FDCPA or GBL § 349 claims because courts have held that the discovery rule does not
apply to those claims. (Id. at 18–19; M&T Bank’s Mem. 7.) Third, Defendants argue that the
Court “should reject,” (M&T Bank’s Mem. 7–8), Plaintiff’s suggestion that his claims were not
discoverable until speaking with an attorney in 2024 because he could have spoken with an
attorney at any time and possessed the operative facts to file the claims. (Id. at 8, 10 (citing

Graham v. HSBC Mortg. Corp., No. 18-CV-4196, 2021 U.S. Dist. LEXIS 183333, at *19 n.4
(S.D.N.Y. Sep. 24, 2021)); SONYMA’s Mem. 18–19.) Moreover, Defendants argue that
Plaintiff was represented by counsel during the State Court Action over the course of “five plus
years” and could have challenged the interest calculations at any time because the calculations

were on the record, and Plaintiff admits in the Amended Complaint that they were visible during
the State Court Action. (SONYMA’s Mem. 18–19, 21; M&T Bank’s Mem. 10; M&T Bank’s
Reply 2.)
The doctrine of equitable tolling “allows a district court to toll the statute of limitations.”
Polanco v. U.S. Drug Enf’t Admin., 158 F.3d 647, 655 (2d Cir. 1998); see also Doe v. United
States, 76 F.4th 64, 71 (2d Cir. 2023) (“Equitable tolling is a doctrine that permits courts to
extend a statute of limitations on a case-by-case basis to prevent inequity.” (quoting Warren v.
Garvin, 219 F.3d 111, 113 (2d Cir. 2000))). For equitable tolling to apply, a litigant must
demonstrate “[1] that some extraordinary circumstance stood in her way and [2] that she has

been pursuing her rights diligently.” Saint-Jean v. Emigrant Mortg. Co., 129 F.4th 124, 142 (2d
Cir. 2025) (internal quotation marks omitted) (quoting Doe, 76 F.4th at 71), cert. denied, --- S.
Ct. ---, 2026 WL 79895 (Jan. 12, 2026); Watson, 865 F.3d at 132 (quoting Mottahedeh v. United
States, 794 F.3d 347, 352 (2d Cir. 2015)); see also Doe, 76 F.4th at 71 (noting that a party
seeking equitable tolling “must demonstrate . . . that some extraordinary circumstance stood in
[her] way and . . . that [she] has been pursuing [her] rights diligently.” (alterations in original)
(internal quotation marks and citation omitted)); Koch v. Christie’s Int’l PLC, 699 F.3d 141, 157
(2d Cir. 2012) (noting that a showing of reasonable diligence throughout the period a plaintiff
seeks to toll and that some extraordinary circumstance prevented a plaintiff from filing his action
in a timely manner are prerequisites for equitable tolling (quoting Corcoran v. N.Y. Power Auth.,

202 F.3d 530, 543 (2d Cir. 1999))); Polanco, 158 F.3d at 655 (“To avail himself of this doctrine,
the plaintiff must show that he ‘pass[ed] with reasonable diligence through the period [he] seeks
to have tolled.’” (alterations in original) (quoting Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.
1996))). “Equitable tolling is a rare remedy to be applied in unusual circumstances, not a cure-

all for an entirely common state of affairs.” Watson, 865 F.3d at 133 (quoting Wallace v. Kato,
549 U.S. 384, 396 (2007)); see McPartlan-Hurson v. Westchester Cmty. Coll., 804 F. App’x 41,
43–44 (2d Cir. 2020) (rejecting the party’s late filing because equitable tolling of exhaustion
time applies only “in rare and exceptional circumstances, in which a party is prevented in some
extraordinary way from exercising his rights” (quoting Zerilli-Edelglass v. N.Y.C. Transit Auth.,
333 F.3d 74, 80 (2d Cir. 2003))); Berrios v. Henri, No. 18-CV-4194, 2021 WL 6197052, at *3
(E.D.N.Y. Dec. 30, 2021) (quoting same).
Courts will equitably toll statutes of limitations for fraudulent concealment if: “(1) the
defendant concealed the existence of the cause of action from the plaintiff; (2) the concealment

prevented plaintiff’s discovery of the claim within the limitations period; and (3) plaintiff’s
ignorance of the claim did not result from a lack of diligence.” Saint-Jean, 129 F.4th at 142
(citing New York v. Hendrickson Bros., 840 F.2d 1065, 1083 (2d Cir. 1988)); Fromageot v. Britt,
No. 21-CV-1165, 2025 WL 3470473, at *8 (D. Conn. Dec. 3, 2025) (quoting id.), appeal
docketed, No. 26-26 (2d Cir. Jan. 7, 2026); see Koch, 699 F.3d at 157 (a plaintiff must show:
“(1) the defendant wrongfully concealed material facts relating to defendant’s wrongdoing; (2)
the concealment prevented plaintiff’s ‘discovery of the nature of the claim within the limitations
period’; and (3) plaintiff exercised due diligence in pursuing the discovery of the claim during
the period plaintiff seeks to have tolled.” (quoting Corcoran, 202 F.3d at 543)). “A plaintiff can
prove concealment by showing ‘either that the defendant took affirmative steps to prevent the

plaintiff’s discovery of his claim or injury or that the wrong itself was of such a nature as to be
self-concealing.’” Saint-Jean, 129 F.4th at 143 (quoting Hendrickson Bros., 840 F.2d at 1083);
see SL-x IP S.à.r.l. v. Merrill Lynch, Pierce, Fenner & Smith Inc., No. 21-2697, 2023 WL
2620041, at *3 (2d Cir. Mar. 24, 2023) (summary order) (quoting same); In re Google Digit.

Advert. Antitrust Litig., 721 F. Supp. 3d 230, 271 (S.D.N.Y. 2024) (quoting same), appeal
dismissed, No. 24-874, 2024 WL 4491699 (2d Cir. Aug. 28, 2024). Rule 9(b) of the Federal
Rules of Civil Procedure requires that a party alleging fraud or fraudulent concealment “must
state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b);
Spencer v. Lab’y Corp. of Am. Holdings, No. 19-CV-4927, 2024 WL 3675855, at *15 (E.D.N.Y.
Aug. 6, 2024) (“A claim of fraudulent concealment must be pled with particularity, in
accordance with the heightened pleading standards of Fed. R. Civ. P. 9(b).” (quoting Hinds Cty.
v. Wachovia Bank N.A., 620 F. Supp. 2d 499, 520 (S.D.N.Y. 2009))), aff’d, No. 24-2363, 2025
WL 2779015 (2d Cir. Sep. 30, 2025) (summary order). “Generalized or conclusory allegations

of fraudulent concealment are insufficient to toll a statute of limitations.” Singh v. Wells, 445 F.
App’x 373, 378 (2d Cir. 2011) (citing Armstrong v. McAlpin, 699 F.2d 79, 90 (2d Cir. 1983)).
The “[Second] Circuit has explicitly clarified that ‘fraudulent concealment is not essential to
equitable tolling,’” meaning, the application of the doctrine of equitable tolling is not limited to
causes of fraudulent concealment. Saint-Jean, 129 F.4th at 143 (quoting Valdez ex rel. Donely v.
United States, 518 F.3d 173, 182 (2d Cir. 2008)).
Plaintiff fails to show the doctrine of fraudulent concealment tolling should apply to his
claims because he has not pled facts demonstrating that (1) Defendants concealed anything
fraudulent or that Defendants’ conduct was self-concealing, (2) any alleged concealment
prevented Plaintiff’s discovery of the claim within the limitations period, or (3) Plaintiff

exercised due diligence. First, Plaintiff alleges “Defendants affirmatively concealed from
Plaintiff and the other members of the [c]lass the[ir] fraudulent scheme,” (Am Compl. ¶ 168), but
then concedes that Defendants “revealed,” (id. ¶ 63), their “fraudulent scheme to inflate interest
calculations in foreclosure judgments,” (Pl.’s Opp’n 22), in the Referee’s Report of Sale filed on

April 23, 2018, and the scheme had also “become[] discoverable” after the foreclosure auction
on April 11, 2018, (id.). Plaintiff’s only allegation of fraud in the Amended Complaint is the
miscalculated interest rate that Plaintiff admits was discoverable in the Referee’s Report of
Sale.20 (See Am. Compl. ¶¶ 62–67.) Thus, the miscalculated interest, which is the basis of
Plaintiff’s causes of action, was not affirmatively concealed. See Saint-Jean, 129 F.4th at 144
(finding affirmative concealment when the defendant-mortgage company rushed the plaintiffs to
sign documents that excluded the default interest rate and dissuaded the plaintiffs from bringing
counsel at closing).
Nor do the the M&T Bank affidavits and the referee’s affidavit make Defendants’ alleged

conduct inherently self-concealing, as Plaintiff contends. The miscalculations that Plaintiff
alleges were concealed in the affidavits were also provided in the Referee’s Report of Sale.
Plaintiff cites to Toohey v. Portfolio Recovery Associates, LLC, to support his claim that the
affidavits made Defendants’ fraud “self-concealing” and granted legitimacy to the Referee’s
Report of Sale, and as a result, Plaintiff “had no reason to suspect the fraud at an earlier point in

20 Even accepting Plaintiff’s arguments regarding Defendants’ fraud-based conduct,
including “fraudulent interest calculations,” (Am. Compl. ¶ 149), and a “fraudulent scheme,” (id.
¶ 165), Plaintiff only alleges fraud-based conduct in a conclusory manner. Allegations of fraud
must comply with Rule 9(b) of the Federal Rules of Civil Procedure’s heightened pleading
requirements. Miller v. United States ex rel. Miller, 110 F.4th 533, 543 (2d Cir. 2024) (“Rule
9(b) provides, in relevant part: ‘In alleging fraud or mistake, a party must state with particularity
the circumstances constituting fraud or mistake.’” (quoting Fed. R. Civ. P. 9(b))); United States
ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 25 (2d Cir. 2016) (quoting same). As discussed in this
Section, Plaintiff provides no factual allegations of Defendants’ alleged fraudulent scheme of
filing false and deceptive documents and instead relies on pure conjecture. “Bare-bones
allegations do not satisfy Rule 9(b).” Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d
106, 119 (2d Cir. 2013).
time.” (Pl.’s Opp’n 17–18 (citing No. 15-CV-8098, 2016 WL 4473016, at *6 (S.D.N.Y. Aug.
22, 2016).) In Toohey, the plaintiff plausibly alleged that the defendant-debt collectors submitted

false affidavits claiming they personally reviewed the “account-level documentation”
corroborating the debt’s existence and amount, when they had not, and failed to attach any
account-level documentation. Toohey, 2016 WL 4473016, at *1 n.3, 6–7, 6 n.8. In addition, the
plaintiff alleged that the defendant-debt collectors prohibited the defendant-counsel from directly
contacting original creditors and debt sellers and, therefore, the defendant-counsel “could not
itself confirm the legitimacy or accuracy of any debt or amount claimed.” Id. at *3. The court in
Toohey therefore concluded that the defendants’ conduct was self-concealing because it
contained information that “only the [d]efendants could be aware.” Id. at *6 (emphasis added).
In contrast in this case, the affidavits were filed along with the Referee’s Report of Sale that

“revealed” the calculations using the judgment amount instead of the mortgage principal. As a
result, the affidavits did not contain information that only Defendants knew because it was
included in the record, and therefore Plaintiff has not shown “self-concealing” fraud. See Sejin
Precision Indus. Co. v. Citibank, N.A., No. 16-CV-6910, 2017 WL 4350323, at *5 (S.D.N.Y.
June 28, 2017) (finding the plaintiffs failed to allege defendants’ fraud was self-concealing
through a “general allegation that [the] defendants ‘engaged in secret and surreptitious activities’
in order to conceal their misconduct”), aff’d, 726 F. App’x 27 (2d Cir. 2018); cf. Michelo, 419 F.
Supp. 3d at 697–98 (finding the defendants’ affidavits in their default filings were inherently
self-concealing because they alleged information regarding business records only the defendants
knew and the plaintiffs could not discover with reasonable diligence); see also Conklin v. Jeffrey

A. Maidenbaum, Esq., No. 12-CV-3606, 2013 WL 4083279, at *5 (S.D.N.Y. Aug. 13, 2013)
(“Failure of a plaintiff to plead facts to suggest that the defendants sought to conceal these
violations or [the conduct was self-concealing] . . . deprive[s] the plaintiff of any basis for taking
advantage of equitable tolling.” (citing Wade v. Rosenthal, Stein & Assocs., No. 11-CV-5672,

2012 WL 3764291, at *3 (E.D.N.Y. Aug. 29, 2012))).
Second, Plaintiff does not show Defendants’ alleged concealment specifically prevented
Plaintiff’s discovery of his claims. Plaintiff alleges that both M&T Bank’s affidavits, (Pl.’s
Opp’n 22–23), and referee’s affidavit, (id. at 23), lent legitimacy to the State Court Action and
allegedly prevented Plaintiff from exercising reasonable diligence. Despite the referee’s
affidavit affirming that the Referee’s Report of Sale was “in all respect true and correct” and an
“accurate and complete report of the deposition of the proceeds of such sale,” (id.), Plaintiff fully
blames Defendants for the interest miscalculation approved in the State Court Action documents
with unsubstantiated claims that Defendants created a “fraudulent scheme” and presented it in

the State Court Action, (see id. at 18, 22–25). Plaintiff alleges without factual support that
Defendants’ “scheme employed standardized fraudulent calculation methods across dozens if not
hundreds of foreclosures,” (see id. at 26), but Plaintiff does not name any additional foreclosure
action involving Defendants or provide any other factual support for the statement, (see Am.
Compl. ¶¶ 71, 118). Plaintiff alleges no facts to indicate the referee’s or the state court’s own
determinations in the State Court Action were part of a “scheme,” (id. ¶ 11), or that Defendants’
filings “were [ ] ratified by the [state] court without any contemporaneous judicial review,” (Pl.’s
Opp’n 12). Plaintiff only alleges that Defendants and the referee used the same “inflated interest
figures using unlawful methods,” and on that basis alone, Plaintiff alleges that the state court’s
determinations were not independent and Defendants caused Plaintiff’s injuries. (Id. at 19; see

Am. Compl. ¶¶ 30, 58.) This is insufficient to show that Defendants’ conduct alone prevented
Plaintiff from discovering his claims, especially because all of the calculations in the filings were
publicly filed. Macias v. Ocwen Loan Servicing, LLC, 718 F. App’x 32, 35 (2d Cir. 2017)
(“[The plaintiff’s] attempt to invoke equitable tolling is unavailing because he pleads in only a

conclusory fashion that [defendant-]appellees prevented him from discovering the alleged
violation.”); Qureshi v. People’s United Bank, No. 18-CV-163, 2020 WL 2079922, at *13 (D.
Vt. Apr. 30, 2020) (finding equitable tolling did not apply because the plaintiffs failed “to plead
with particularity that [defendant] fraudulently concealed its wrongdoing”).
Third, Plaintiff fails to sufficiently allege reasonable diligence because he neither pleads
any action taken to investigate his claims, nor provides facts from which the Court can infer
reasonable diligence. In the Amended Complaint, Plaintiff states in conclusory fashion that he
“could [not] have discovered, even upon reasonable exercise of diligence,” Defendants’
fraudulent scheme, (Am. Compl. ¶ 165), and the referee’s affidavit attached to the Referee’s

Report of Sale gave him “no reason to question the truthfulness of [the Referee’s Report of
Sale],” (Pl.’s Opp’n 23). This is contrary to the allegations in the Amended Complaint that
Defendants’ interest calculations were “revealed,” (Am. Compl. ¶ 63), and therefore, Plaintiff
could have conducted his own inquiry. Further, Plaintiff was represented by counsel in the State
Court Action who could have reviewed the filings.21 “Generalized or conclusory allegations of

21 In the State Court Action, Plaintiff was initially represented by Galani Law Firm PC
and then changed attorneys on October 28, 2019 to Shiryak, Bowman, Anderson, Gill &
Kadochnikov LLP. See Not. of Appearance and Consent to Change Attorney, No. 501233/2015
(N.Y. Sup. Ct. filed Oct. 10, 2019), Docket Entry No. 114. (See Notice of Claim to Surplus
Monies.) However, Plaintiff does not allege his counsel’s malpractice “is an extraordinary
circumstance” that warrants equitable tolling. Attorney incompetence alone is usually
insufficient to meet the standard for equitable tolling. Fromageot v. Britt, No. 21-CV-1165,
2025 WL 3470473, at *10 (D. Conn. Dec. 3, 2025) (“Even where the extraordinary
circumstances . . . involve attorney incompetence, the petitioner must still demonstrate that he
himself made reasonably diligent attempts to ensure that his petition was filed on time.” (quoting
Doe v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004))), appeal docketed, No. 26-26 (2d Cir. Jan. 7,
2026).
fraudulent concealment are insufficient to toll a statute of limitations.” Singh, 445 F. App’x at
378 (citing Armstrong, 699 F.2d at 90); Litovich v. Bank of Am. Corp., No. 20-CV-3154, 2025

WL 2521039, at *18 (S.D.N.Y. Sep. 2, 2025) (finding the plaintiffs did not sufficiently plead
reasonable diligence because they failed to name a single action they took and pled only
conclusory allegations that the defendants’ conspiracy and concealing conduct prevented the
discovering of their injury); see Hinds Cty., 620 F. Supp. 2d at 521 (“Due diligence is not
adequately pled if [the] plaintiffs ‘did not allege in the [complaint] that they exercised due
diligence’ or if they ‘make no allegation of any specific inquiries of [the defendants], [or] detail
when such inquiries were made, to whom, regarding what, and with what response.’” (alterations
in original) (quoting In re Merrill Lynch, 154 F.3d at 60)); see also Conklin, 2013 WL 4083279,
at *7 (finding equitable tolling did not apply to the plaintiffs’ FDCPA cases because the

plaintiffs “relied solely on reassuring statements that [the d]efendants made and thus, were not
sufficiently diligent”).
Other than the doctrine of fraudulent concealment tolling which Plaintiff does not
demonstrate applies, Plaintiff’s Amended Complaint contains no facts suggesting an
“extraordinary circumstance” that might otherwise entitle him to equitable tolling. See Saint-
Jean, 129 F.4th at 142 (stating equitable tolling requires (1) “that some extraordinary
circumstance stood in [the plaintiff’s] way” and (2) “that [the plaintiff] pursued [his or her] rights
diligently” (quoting Doe, 76 F.4th at 71)). Therefore, the Court finds that all of Plaintiff’s claims
are time-barred, and equitable tolling does not apply.
iii. The Court denies Plaintiff’s request to amend the Amended
Complaint to add M&T Bank as a defendant.
M&T Bank argues Plaintiff incorrectly sued M&T Bank Corporation, the parent
company, instead of M&T Bank, the national association, and as a result, the Court should

dismiss the complaint because Plaintiff has “failed to plead any facts in his Amended Complaint
to support a claim for piercing the corporate veil.”22 (M&T Bank’s Mem. 1, 25–28.) First, M&T
Bank argues that to pierce the corporate veil under New York law, Plaintiff must demonstrate
“(1) the owners exercised complete domination of the corporation in respect to the transaction
attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff
which resulted in plaintiff’s injury.” (Id. at 27 (quoting Morris v State Dep’t of Taxation & Fin.,
82 N.Y.2d 135, 141 (1993) (citations omitted)).) Second, M&T Bank contends that Plaintiff
does not allege facts to support either prong, and as a result, “the allegations in the Amended
Complaint plainly relate to an entity other than the named Defendant, Plaintiff has not stated

(and cannot state) a claim against Defendant — and, therefore, this Court should dismiss the
Amended Complaint.” (Id. at 28.) M&T Bank argues that Plaintiff admits in his Opposition that
the State Court Action filings identify “M&T Bank” as the correct servicing agent. (M&T
Bank’s Reply 9–10.)
Plaintiff contends that M&T Bank’s argument that he incorrectly named M&T Bank
Corporation as a Defendant in this action is “procedurally premature and does not support
dismissal of Plaintiff’s [ ] Amended Complaint.” (Pl.’s Opp’n 37.) First, Plaintiff contends that
M&T Bank’s own filings in the State Court Action “do not indicate whether the servicing agent
is M&T Bank, a national association, or M&T Bank Corporation, instead just stating ‘M&T

22 Even though the statutes of limitations have expired on Plaintiff’s claims, the Court
analyzes the parties’ arguments regarding whether Plaintiff sued the correct entity although
M&T Bank nevertheless defended the action.
Bank.’” (Id.) Second, Plaintiff contends that he received communications from M&T Bank with
a mailing address in Buffalo, New York, and that address is “consistent with the M&T Bank

Corporation’s New York Department of State Division of Corporations registration.” (Id. at 37.)
As a result, Plaintiff argues “it appears M&T Bank Corporation was the servicing agent” in the
State Court Action. (Id. at 37–38.) Third, Plaintiff contends that he does not have enough
information to confirm the correct mortgage servicing agent due to M&T Bank’s failure to file
the required Rule 7.1 corporate disclosure statement and due to limited discovery. (Id. at 38.)
Accordingly, Plaintiff argues that the Court should permit him to amend his Amended Complaint
to include M&T Bank. (Id.)
“Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading
‘relates back’ to the date of a timely filed original pleading and is thus itself timely even though

it was filed outside an applicable statute of limitations.” Krupski v. Costa Crociere S. p. A., 560
U.S. 538, 541 (2010). Under Rule 15(c), an amendment to a pleading to change the party against
whom a claim is asserted will relate back if (1) “the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the
original pleading,” (2) the parties to be brought in “received such notice of the action that it will
not be prejudiced in defending on the merits,” (3) those parties “knew or should have known that
the action would have been brought against it, but for a mistake concerning the proper party’s
identity,” and (4) elements (2) and (3) were satisfied within the period provided by Rule 4(m) for
serving the summons and complaint. Fed. R. Civ. P. 15(c); Ceara v. Deacon, 916 F.3d 208, 211
(2d Cir. 2019) (“Rule 15(c)(1)(C) allows for an amended pleading to relate back to the date of

the original pleading if four conditions are met: ‘(1) the claim must have arisen out of conduct
set out in the original pleading; (2) the party to be brought in must have received such notice that
it will not be prejudiced in maintaining its defense; (3) that party [knew or] should have known
that, but for a mistake of identity, the original action would have been brought against it; and . . .

[4] the second and third criteria are fulfilled within [the period provided by Rule 4(m) for serving
the summons and complaint], and . . . the original complaint [was] filed within the limitations
period.” (alterations in original) (quoting Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013)));
see Gudanowski v. Burrell, No. 23-6552, 2024 WL 3594320, at *3 (2d Cir. July 31, 2024)
(summary order) (“[U]nder Rule 15(c)(1)(C), relation back is permitted when the party the
plaintiff seeks to add to the complaint ‘received such notice of the action that it will not be
prejudiced in defending on the merits’ and ‘knew or should have known that the action would
have been brought against it, but for a mistake concerning the proper party’s identity.’” (quoting
Fed. R. Civ. P. 15(c)(1)(C)(ii))).

Because the Court finds that Plaintiff’s claims against the mortgage servicing agent M&T
Bank, whether as M&T Bank or as M&T Bank Corporation, are barred by the statutes of
limitations, Plaintiff fails to meet the Rule 15(c)(1)(C) requirements to amend the complaint to
change or add a party, and the Court declines to evaluate the other Rule 15(c)(1)(C)
requirements. See Ceara, 916 F.3d at 211 (explaining that Rule 15(c)(1)(C) relation back
requires that the “original complaint [must be] filed within the limitations period”). Plaintiff
may not amend his Amended Complaint to add M&T Bank as a defendant. In addition, the
Court does not address the parties’ arguments about piercing the corporate veil because the
statutes of limitations, discussed in Section II.d.i, and res judicata, discussed infra, bar the claims
against M&T Bank or M&T Bank Corporation, regardless of which entity was the proper

mortgage servicing agent. See Nkansah v. United States, No. 18-CV-10230, 2021 WL 5910647,
at *5 (S.D.N.Y. Aug. 30, 2021) (“[T]he relation back doctrine is inapplicable where . . . the
original complaint itself is untimely.” (quoting Bradley v. Nolan, No. 03-CV-1616, 2007 WL
959160, at *2 (S.D.N.Y. Mar. 30, 2007))), report and recommendation adopted, 2021 WL

5493214 (S.D.N.Y. Nov. 23, 2021); El-Massri v. New Haven Corr. Ctr., No. 18-CV-1249, 2019
WL 3491639, at *12 (D. Conn. July 31, 2019) (denying leave to amend to add new defendants
because the claims were time-barred); Bradley, 2007 WL 959160, at *2 (denying leave to amend
complaint to name additional defendants because an “[e]xamination of plaintiff's proposed
amended complaint reveals that it could not withstand a motion to dismiss as all of the claims are
time-barred”); see also Watson v. Connecticut, No. 20-CV-544, 2020 WL 3404066, at *2 (D.
Conn. June 19, 2020) (finding the named defendants were likely immune from a damages suit in
federal court and holding the suit was barred by the statute of limitations “[e]ven assuming that
any of the named defendants were subject to suit”); Wingspan Recs., Inc. v. Simone, No. 12-CV-

2172, 2014 WL 2116191, at *9 (S.D.N.Y. May 16, 2014) (denying the addition of an unjust
enrichment claim because the statute of limitations had expired and therefore the claim “cannot
be saved through the relation-back doctrine”).
iv. The Court sua sponte dismisses Plaintiff’s claims against
Schiller Law

In general, before affirmative defenses can be considered, including statute of limitations
defenses, they must be raised by the defendant at the pleading stage. Graham v. HSBC Mortg.
Corp., No. 18-CV-4196, 2022 WL 1266209, at *6 (S.D.N.Y. Apr. 28, 2022); MBIA Ins. Corp. v.
Patriarch Partners VIII, LLC, 842 F. Supp. 2d 682, 710 (S.D.N.Y. 2012) (“Fed. R. Civ. P. 8(c)
requires a defendant to ‘affirmatively state any avoidance or affirmative defense,’ and
affirmative defenses that are not raised in the pleading stage should be dismissed.” (citation
omitted)); see Davis v. Bryan, 810 F.2d 42, 44 (2d Cir. 1987) (“The statute of limitations is an
affirmative defense under Fed. R. Civ. P. 8(c) that must be asserted in a party’s responsive
pleading ‘at the earliest possible moment’ and is a personal defense that is waived if not

promptly pleaded.” (collecting cases)). However, the Second Circuit has clarified that “[w]hile
[such] defenses are ordinarily not to be recognized when not raised in the answer, no absolute
bar to the consideration of such claims exists.” Walters v. Indus. & Com. Bank of China, Ltd.,
651 F.3d 280, 293 (2d Cir. 2011) (internal quotation marks and ellipsis omitted) (quoting Doe v.
Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998)); Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir.
1993) (first quoting Davis, 810 F.2d at 44; and then citing Carbonell v. La. Dep’t of Health &
Hum. Res., 772 F.2d 185, 189 (5th Cir. 1985)) (same). The Second Circuit has held that “district
courts may dismiss an action sua sponte on limitations grounds in certain circumstances where
‘the facts supporting the statute of limitations defense are set forth in the papers [the] plaintiff

himself submitted.’” Walters, 651 F.3d at 293 (quoting Leonhard v. United States, 633 F.2d 599,
609 n.11 (2d Cir. 1980)). See also Pino v. Ryan, 49 F.3d 51, 53–54 (2d Cir. 1995) (affirming sua
sponte dismissal of complaint as frivolous on statute of limitations grounds); Leonhard, 633 F.2d
at 609 n.11 (“The district court has the power to dismiss a complaint sua sponte for failure to
state a claim . . . . There appears to be no reason why the same rule should not apply to a
dismissal on statute of limitations grounds . . . where . . . the facts supporting the statute of
limitations defense are set forth in the papers plaintiff himself submitted.” (citations omitted));
Hunt v. Bronx Lebanon Hosp., No. 22-CV-54, 2022 WL 375415, at *3 (S.D.N.Y. Feb. 7, 2022)
(“Dismissal is appropriate, however, where the existence of an affirmative defense, such as the
statute of limitations, is plain from the face of the pleading.” (citation omitted)); De Santis v. City

of New York, No. 10-CV-3508, 2014 WL 228659, at *5 (S.D.N.Y. Jan. 22, 2014) (“Both the
Supreme Court and the Second Circuit have long held that courts may dismiss actions on their
own motion in a broad range of circumstances where they are not explicitly authorized to do so
by statute or rule.” (quoting Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 1999))).

In this case, the facts supporting the statute of limitations defense for Schiller Law are set
forth in Plaintiff’s Amended Complaint — Plaintiff states that the allegedly fraudulent interest
calculations were “revealed” in the Referee’s Report of Sale filed on April 23, 2018. (Am.
Compl. ¶ 63.) As discussed supra, the statutes of limitations for all of Plaintiff’s claims have
expired and equitable tolling does not apply, and therefore the Court sua sponte dismisses
Plaintiffs’ claims against Schiller Law even though Schiller Law has failed to appear in this
action. Graham, 2022 WL 1266209, at *7–8 (dismissing the plaintiffs’ default judgment motion
sua sponte for claims of fraud, negligent misrepresentation, GBL § 349, and slander/defamation
involving an underlying state court foreclosure proceeding because the statute of limitations

defense was “set forth” in the plaintiffs’ second amended complaint and the plaintiffs’ failed to
plead equitable tolling); De Santis v. City of New York, No. 10-CV-3508, 2013 WL 3388455, at
*7 (S.D.N.Y. July 8, 2013) (dismissing sua sponte the default judgment motion as time-barred
because the claims expired and the plaintiff failed to “present[] a viable theory to prevent the
running of the limitation periods”), report and recommendation adopted, 2014 WL 228659
(S.D.N.Y. Jan. 22, 2014).
e. Plaintiff’s claims against SONYMA and M&T Bank are barred by res
judicata

Even though all of Plaintiff’s claims against Defendants are time-barred, the Court
nevertheless addresses the parties’ arguments regarding res judicata. For the reasons stated
below, the Court finds res judicata bars all of Plaintiff’s claims against SONYMA and M&T
Bank.
Defendants argue res judicata bars Plaintiff’s claims against them. (SONYMA’s Mem.
13; M&T Bank’s Mem. 11–13.) First, Defendants contend that the State Court Action resulted

in a final judgment that bars all of Plaintiff’s claims because they all arise out of the same
conduct adjudicated in the State Court Action. (SONYMA’s Mem. 13; M&T Bank’s Mem. 13.)
Second, Defendants argue that Plaintiff had “multiple different opportunities” to challenge the
interest calculations, (M&T Bank’s Mem. 13), and not only failed to do so, but also “chose
instead to seek the surplus funds, utilizing the same calculation he objects to here,” (SONYMA’s
Mem. 13). (See SONYMA’s Reply 3; M&T Bank’s Mem. 13.)
Plaintiff argues res judicata does not apply because (1) his claims do not arise out of the
same facts that determined the underlying foreclosure judgments, and (2) Defendants lack
privity. (Pl.’s Opp’n 16.) First, Plaintiff argues this case and the State Court Action involve

“completely different causes of action” because they are “unquestionably based on different
facts” that “arose independently of the facts relevant to the underlying [State Court Action].”
(Id. at 17–18.) Plaintiff contends this case “does not concern the origins and assignment of the
mortgage” but different facts regarding “Defendants’ submission of fraudulent interest
calculations during the post-action stage of foreclosure litigation.” (Id. at 10.) Second, Plaintiff
argues M&T Bank lacks “a cognizable personal interest” in the mortgage principal, the subject
of the underlying State Court Action, and therefore M&T Bank cannot establish privity with
SONYMA in the State Court Action. (Id. at 17 (quoting Hansen v. Miller, 52 F.4th 96, 101 (2d
Cir. 2022)).)
Federal courts have “consistently accorded preclusive effect to issues decided by state

courts.” Allen v. McCurry, 449 U.S. 90, 95 (1980). Under the doctrine of res judicata, or claim
preclusion, “a final judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in [the previous] action.” Kern v. Joyce,
857 F. App’x 691, 692 (2d Cir. 2021) (quoting Giannone v. York Tape & Label, Inc., 548 F.3d

191, 193 (2d Cir. 2008)); Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 157 (2d Cir.
2017) (quoting Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 284 (2d Cir. 2000)); Proctor v.
LeClaire, 715 F.3d 402, 411 (2d Cir. 2013) (quoting SEC v. First Jersey Secs., Inc., 101 F.3d
1450, 1463 (2d Cir. 1996)); see also Worthy-Pugh, 664 F. App’x at 22–23 (affirming a district
court’s decision granting a defendant’s motion to dismiss where the district court found that the
plaintiff’s action for mortgage fraud was precluded by a prior state court foreclosure action).
“Congress has specifically required all federal courts to give preclusive effect to state-
court judgments whenever the courts of the [s]tate from which the judgments emerged would do
so . . . .” Allen, 449 U.S. at 96. To prove claim preclusion under New York law, a defendant

must show that “(1) the previous action involved an adjudication on the merits; (2) the previous
action involved the [same adverse parties] or those in privity with them; and (3) the claims
asserted in the subsequent action were, or could have been, raised in the prior action.” Marcel
Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir. 2015) (alteration
in original) (quoting TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014)); see
also Hereford Ins. Co. v. Shelly, 243 N.Y.S.3d 495, 496 (App. Div. 2025) (“One linchpin of res
judicata is an identity of parties actually litigating successive actions against each other: the
doctrine applies only when a claim between the parties has been previously brought to a final
conclusion.’” (quoting Simmons v. Trans Express Inc., 37 N.Y.3d 107, 111 (2021))); Pawling
Lake Prop. Owners Ass’n v. Greiner, 897 N.Y.S.2d 729, 732 (App. Div. 2010) (noting that a

stipulation of discontinuance with prejudice is subject to res judicata).
The privity inquiry turns on “whether, under the circumstances, the interests of the
[defendant] were adequately represented [in the earlier action].” Akhenaten v. Najee, LLC, 544

F. Supp. 2d 320, 328 (S.D.N.Y. 2008) (alterations in original) (quoting Amalgamated Sugar Co.
v. NL Indus., Inc., 825 F.2d 634, 640 (2d Cir. 1987)). New York law provides that privity
extends to parties “who are successors to a property interest, those who control an action
although not formal parties to it, those whose interests are represented by a party to the action,
and possibly coparties to a prior action.” Nuseiri v. Kosher Bravo Pizza LLC, No. 25-CV-764,
2025 WL 3687597, at *3 (E.D.N.Y. Dec. 19, 2025) (quoting Ferris v. Cuevas, 118 F.3d 122, 126
(2d Cir. 1997)); see also Fequiere v. Tribeca Lending, No. 14-CV-812, 2016 WL 1057000, at *6
(E.D.N.Y. Mar. 11, 2016) (finding that the defendants, who were not named in a state court
foreclosure action, were in privity with the state-court plaintiff because of their alleged interests

in the federal plaintiff’s/state-court defendant’s mortgage); Graham v. Select Portfolio Servicing,
Inc., 156 F. Supp. 3d 491, 509 (S.D.N.Y. 2016) (same); Swiatkowski v. Citibank, 745 F. Supp. 2d
150, 171, 171 n.12 (E.D.N.Y. 2010) (same). In addition, New York law provides “a mortgage
servicer [is] in privity with mortgage lender for the purposes of res judicata as applied to state
foreclosure proceedings and subsequent federal court proceedings.” Hall v. Select Portfolio
Servicing Inc., No. 24-CV-2210, 2025 WL 1042339, at *4 (S.D.N.Y. Jan. 14, 2025) (first citing
Yeiser v. GMAC Mortg. Corp., 535 F. Supp. 2d 413, 423 (S.D.N.Y. 2008); and then citing
Fequiere, 2016 WL 1057000, at *7), report and recommendation adopted, 2025 WL 958542
(S.D.N.Y. Mar. 31, 2025); see Pomeranz v. Shor, 249 N.Y.S.3d 644, 646 (App. Div. 2026)
(“Although relationship alone is not sufficient to support preclusion, “[privity] includes those

who are successors to a property interest, those who control an action although not formal parties
to it, [and] those whose interests are represented by a party to th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11357423. Public record. Not legal advice.