Senate Bill S3766

                                 
BILL NUMBER: S3766

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to
renewals based on a subsequent change in law

 
PURPOSE AND INTENT OF BILL:

The Legislature finds that where the Court of Appeals has determined an
issue of law and a subsequent change or clarification in the law is
enacted, relevant to the Court's prior determination, and may have
affected the outcome, numerous important public purposes would be
advanced by a swift reconsideration by the Court of its prior determi-
nation. Our trial and intermediate appellate courts benefit from the
guidance which the jurisprudence of the Court of Appeals affords. Liti-
gants benefit from the stability of precedent and clarity of our legis-
lative scheme.

The clarity and stability which our decisional law strives to provide
are not advanced by permitting to stand determinations of New York's
highest court which may no longer represent an accurate statement of an
              

issue of law in light of subsequent clarifications or changes made by
the Legislature. The interests of judicial economy, conservation of
judicial resources, and the preservation of the public fisc are thwarted
by permitting actions affected by an intervening change or clarification
in the law to, once again, weave their way through our trial and inter-
mediate appellate courts.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill provides that the CPLR be amended by adding a new
section 5616, with subdivisions (a) through (d), collectively establish-
ing the mechanism and governing rules for a motion for leave to renew
based on a subsequent change in the law to be made directly to the Court
of Appeals.

Section 2 of the bill contains the effective date and makes clear that
this legislation will be immediately applicable and effective.

 
JUSTIFICATION:

The New York State Constitution does not address-let alone prohibit-the
Court of Appeals' power to entertain motions for leave to renew prior
appeals determined by the Court (see NY Const., Art.  6, Sec. 3).
Accordingly, consistent with the Legislature's power to enact legis-
lation affecting the Court of Appeals where the Constitution is other-
wise silent (e.g., L 2023, ch 123) it is the intent of the Legislature
to hereby create a procedural mechanism for the Court of Appeals to
decide motions for renewal, and to render a decision following briefing
and oral argument, where an intervening change or clarification in the
law is relevant to the Court of Appeals' prior determination (see gener-
ally FHA v Darlington Inc., 358 US 84, 90-92 (1958)).

For example, in the wake of a determination of the Court of Appeals (and
intermediate appellate courts), this body enacted the Foreclosure Abuse
Prevention Act (hereinafter "FAPA" (L 2022, ch 821)), which abrogates
the holdings of the Court of Appeals on issues of law. Yet these legis-
lative enactments have been undermined by lower court interpretations
which deprive those intended to benefit from the legislation of the full
protection thereof. As an illustration, PAPA § 10 provides that the act
shall apply to "all actions" in which a judgment of foreclosure and sale
has not been enforced. Notwithstanding this clear and unequivocal
command of the will of the People, trial courts have refused to enter-
tain motions made under FAPA's § 10 by defendants who defaulted in
appearing in the action, on the basis that defaulting defendants may not
seek relief under FAPA without first vacating their default (e.g., HSBC
Bank USA NA v Melchner, Index No. 500309/2020, NYSCEF Doc No. 63 (Sup
Ct, Putnam County Apr. 13, 2023)). Moreover, courts have ignored the
plain language of PAPA § 7 by holding that a prior dismissal for lack of
standing is tantamount to "an expressed judicial determination, made
upon a timely interposed defense, that the (mort gage loan) was not
validly accelerated" (CPLR 213(4)(a); see Wilmington Say. Fund Socy.,
FSB v Madden, Misc 3d, 2023 NY Slip Op 23044, *1, 2, 4 (Sup Ct, Putnam
County 2023); Reinman v Deutsche Bank Natl. Trust Co.,AD3d, 2023 NY Slip
Op 01813, *1 (2d Dept 2023)).  Courts have additionally refused to
afford FAPA its intended retroactive) effect (see L 2022, ch 821, § 10)
by reasoning that to do so would destroy "vested rights" (e.g., RTGLQ
Invs., L.P. v Gross, Misc 3d, 2023 NY Slip Op 23082 (Sup Ct, Westchester
County 2023)).2 Interpretations such as these violate our canons of
statutory construction by placing mortgagee-friendly limitations and
extensions to the scope of FAPA, which the Legislature did not see fit
to include (see Matter of Tucker v Bd. Of Educ., Community School Dist.
No. 10, 82 NY2d 274, 278 (1993); see generally People v Roberts, 31 NY3d
406, 418 (2018); see also Ditech Fin. LLC v Naidu, 2023 NY Slip Op
23370, 4 (Sup Ct, Queens Cty Oct. 18, 2023) (Correctly interpreting our
intent: "FAPA did not disturb...") citing US Bank N.A. v Williams, 2023
NY Slip Op 23208, 4-5 (Sup Ct, Putnam Cty Jun.  23, 2023)). Hence, the
trial and intermediate appellate courts, the bar, litigants, and taxpay-
ers at large would benefit from prompt and direct review by our highest
court of the impact of these intervening changes or clarifications in
law.

Under CPLR 5616 (a), a renewal motion may be made to the Court of
Appeals, by any party aggrieved,3 where the action has not been finally
determined or where the action remains "sub judice." The phrase "has not
been finally determined" is intended to be read consistently with cas
law construing CPLR 5011, which provides that an action remains pending
until entry of a final judgment (see e.g.  Nationstar Mtge. LLC v Lett-
man, 2023 NY Slip Op 33319(U) (Sup Ct, Nassau Cty Sep. 18, 2023)). The
phrase "sub judice" contemplates the broader circumstance where,
notwithstanding the entry of a final non-appealable order or judgment,
further judicial intervention or supervision of the order or judgment or
the enforcement thereof, is contemplated (see Tegreh Realty Corp. v
Joyce, 88 AD2d 820 (1st Dept 1982)). For instance, a judgment of fore-
closure and sale may become final after the time to appeal expires, yet
the action remains "sub judice" until such time as the judicial sale
directed thereby (see Nutt v Cuming, 155 NY 309, 313 (1898)), given that
the court conducts the sale (see Batchelar v Batchelar, 244 NY 274, 277
(1927); quoting People v NY Bldg.-Loan Banking Co., 189 NY 233, 237
(1907)), and, for example, must vacate the judgment and dismiss the
action upon a motion demonstrating a failure to strictly comply with the
judgment's limitation period (see RPAPL 1351(1)).4

Under CPLR 5616 (b), upon the granting of a motion for renewal under
subsection (a), the Court shall permit the litigants full briefing and
oral argument on the question of whether the intervening change or clar-
ification of the intent of the law would have affected the outcome of
the prior determination. To afford litigants, the bar, and the trial and
intermediate courts the full benefit of the Court of Appeals' analysis
on issues of law, subsection (c) provides that the Court shall, both in
ruling on the motion under subsection (a), and determining the matter
following the briefing and oral argument under subdivision (b), consider
any questions of law, even if the issue was not preserved for appellate
review or it was previously determined by the Court not to be preserved
for appellate review, provided that the questions of law are relevant to
the intervening change or a clarification of the law. Indeed, the Court
of Appeals is obligated to apply the law as it exists at the time it
decides an appeal, not the controlling law as of the time of the deter-
mination under review (e.g., Asman v Ambach, 64 NY2d 989, 990 (1985);
Matter of Alscot Inv.  Corp. v Inc. Vil. of Rockville Ctr., 64 NY2d 921,
922 (1985)).

Under CPLR 5616 (c), arguments based on a change or clarification in law
shall be entertained by the Court of Appeals (see e.g., Post v 120 East
End Ave. Corp. 62 NY2d 19, 29 (1984)). Were the Court precluded from
entertaining questions of law concerning clarification or change in the
law, the motion under subsection (a) and the briefing and oral argument
under subsection (b) would be illusory. By definition, an intervening
change or clarification in the law is what would give rise to a motion
under subsection (a) and briefing and oral argument under subsection
(b), given that the legislative enactment of clarifying law to correct
erroneous misinterpretations of existing law could not have been fairly
anticipated by litigants at the time of their arguments before the
enactment (see generally CPLR 2221(e); see e.g., Dinallo v. DAL Elec.,
60 AD3d 620 (2d Dept 2009)). Insofar as subsection (c) relates to CPLR
5501 (b) and the Court's "preservation" jurisprudence, "unpreserved"
legal issues relating to the enactment of new law are properly addressed
and determined by the Court (see e.g., Boardwalk & Seashore Corp. v
Murdock, 286 NY 494, 498-499 (1941); accord Strauss v Univ. of State of
NY, 2 NY2d 464, 467 (1957)), as they constitute "questions of law" with-
in the meaning of CPLR 5501 (b) (see Hecker v State, 20 NY3d 1087,
1088-1089 (2013) (Smith, J., concurring); Misciki, 12 NY3d at 524526
(Smith, J., dissenting); People v Riley, 19 NY3d 944, 947-949 (2012)
(Pigott, J. dissenting). Our Court of Appeals has a constitutional and
statutory duty to declare what is New York law. The performance of that
sacrosanct duty is frustrated by an overly narrow interpretation of what
questions of law - even if unpreserved - the Court of Appeals may
review. Accordingly, subsection (c) is intended to codify a fair - and
not unduly restrictive - conception of that review power: questions of
law which could not have been "obviated or cured by factual showings or
legal counter steps" before the courts below, shall be considered by the
Court of Appeals (Telaro v Telaro, 25 NY2d 433, 439 (1969)). And more
particularly, subsection

(c) is intended to codify Post's holding that "new questions of law may
be raised for the first time on appeal" (62 NY2d at 28-29 (applying
statute which had not been enacted at the time of submission of motion
before the trial court); accord Murdock, 286 NY at 498-499; Strauss, 2
NY2d at 467).

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Possible reduction in overall judicial administrative expenses.
 
LEGISLATIVE HISTORY:

2023-2024: S7158A (Hoylman-Sigal), Committed to rules

 
EFFECTIVE DATE:
This legislation shall be effective and applicable immediately, within
the meaning of Post, given that it is procedural in nature (62 NY2d at
24)
1 We note FAPA's intentional omission of the artful word "retroactive,"
as, rather than implement a substantive change in the law, same merely
clarified our intent with respect to existing statutes, meaning that
FAPA was not retroactive in the constitutional sense, despite applying
to cases that remain "sub judice.- Moreover, even if FAPA is held to be
retroactive in the constitutional sense, same did not offend any right
subject to protection under any specific constitutional clause (see
generally, Regina Metro. Co., LLC v New York State Div. of Nous. and
Community Renewal, 35 NY3d 332, 364-66 (2020)).
2 The Court of Appeals has recognized that the concept of "vested
rights," as a means to avoid applying legislation retroactively, is a
"fiction" (Hodes v Axelrod, 70 NY2d 364, 370 (1987); accord Campbell v
Holt, 115 US 620, 628629 (1885); see generally Brearley Sch., Ltd.  v
Ward, 201 NY 358,373-375 (1911); Northern Pacific Ry, Co. v Puget Sound,
250 US 332, 335 (1919); Middleton v Texas Power & Light Co., 249 US,
152, 163 (1919); Mondou v New York, 223 US 1,050 (1912); Hawkins v
Bleakly, 243 US, 210, 213-214 (1917); Forti v New York State Ethics
Com'n , 75 NY2d 596, 615 (1990) citing Cook v City of Binghamton, 48
NY2d 323, 330 (1979)).
3 The phrase "any party aggrieved" is intended in the broadest possible
sense, so to include, for example, any patty to a pending appeal, absent
expiration or exhaustion of the right to appeal from a final judgment
dismissing or discontinuing against that party.
4 We note that CPLR 2004 does not apply to "specific" statutory dead-
lines established by, for instance, the RPAPL, which does not permit
judicial discretion for good cause (see generally Bank of N.Y.  v
Silverberg, 86 AD3d 274,283 (2d Dept 2011) r(T)he law must not yield to
expediency and the convenience of lending institutions.  Proper proce-
dures must be followed to .. . assure the enforcement of the rules that
govern real property")), nor is it applicable to a "judgment- (see CPLR
2004; contra CPLR 2003). In the same vein, CPLR 5019 cannot apply to
excuse noncompliance with such a statute of limitations, as, for
instance, the inclusion of the ninety -day statutory period (see RPAPL
1351 (I)) was not a "mistake, defect, or irregularity," and therefore
not subject to "correction" (CPLR 5019(a) compare Lennar Northeast v.
Gifaldi, 258 AD2d 240, 242 (4th Dept 1999) (finding 90-day period under
RPAPL 1371(2) to be a statute of limitations); and L 2016, ch 73, § 8
(Part Q) (added "within ninety days of the date of the judgment" statute
of limitation to RPAPL 1351(1)); with id. at § 9 (adding the a va
ilability of a "good cause" extension to the 90-day period set forth
under RPAPL 1353(1)); and En dara-Caicedo v New York State Dept. of M
otor Vehicles, 38 NY3d 20,33 (2022) ("The Legislature is presumed to be
aware of the law in existence at the time of an enactment"); cf. INS v
Cardoza-Fonseca, 480 US 421,432 (1987) (where the legislature "includes
particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that the legislature
acts intentionally and purposely in the disparate inclusion or exclu-
sion") (internal quotation marks & citations omitted; see Caprio v New
York State Dept. of Taxation and Fin., 25 NY3d 744, 755 ( 2015) ("this
Court has long stated that, "when the Legislature does tell us what it
meant by a previous act, its subsequent statement of earlier intent is
entitled to very great weight"(). To the extent the Appellate Division
ha s held otherwise (e.g., Bank of Am., N.A. v Cord, 214 AD3d 934 (2d
Dept 2023)), such precedent should not be followed, as same is in direct
conflict with the intent of the Legislature and principles of statutory
construction.