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SECTION 619
Prosecution and defense of actions; actions preferred; limitations; power to execute instruments; exemption from filing and other fees
Banking (BNK) CHAPTER 2, ARTICLE 13
§ 619. Prosecution and defense of actions; actions preferred;
limitations; power to execute instruments; exemption from filing and
other fees. 1. (a) For the purpose of executing any of the powers and
performing any of the duties hereby conferred upon him, the
superintendent may, in the name of any banking organization of which he
is in possession, prosecute and defend any and all actions. Any such
action, upon application of the superintendent, shall be entitled to the
same preference to which an action by or against a receiver appointed by
the court is entitled in any court of the state. Except as provided in
the civil practice law and rules for venue for real property actions,
all actions against a banking organization in the possession of the
superintendent or against the superintendent arising out of its affairs,
shall be instituted and maintained in a court of record in the county in
which such banking organization maintained its principal place of
business.

(b) If the superintendent takes possession of the business and
property of any banking organization entitled to maintain an action,
before the expiration of the time limited for the commencement thereof,
such action may be commenced by the superintendent in the name of such
banking organization before the expiration of that time or within one
year after taking such possession, whichever date is later.

(c) Where by any agreement a period of limitation is fixed for
instituting an action upon any claim, or for presenting or filing any
claim, proof of claim, proof of loss, demand, notice, or the like, or
where in any action or by statute or ordinance, a period of limitation
is fixed for serving or filing any claim or pleading, taking any appeal,
or doing any other act, and where in any such case such period had not
expired at the date of taking possession of the business and property of
any such banking organization, the superintendent may for the benefit of
such banking organization institute any such action, serve or file any
such claim or pleading, take any such appeal, or do any such other act,
required or permitted to such banking organization within a period of
one year subsequent to the date of taking of such possession, or within
such further period as may be permitted by the agreement, or in the
action, or by statute or ordinance, as the case may be.

(d) (1) Except as provided in this paragraph, unless the federal
regulator or insurer is appointed as receiver or liquidator, the
superintendent's taking of possession of any banking organization and
the liquidation of same shall operate as a stay of and as an injunction
against, as of the date the superintendent takes possession of the
banking organization, applicable to all persons or entities, of:

(i) The commencement or continuation, including the issuance or
employment of process, of a judicial, administrative, or other action or
proceeding against the banking organization that was or could have been
commenced before the taking of possession, or to recover a claim against
the banking organization that arose before the taking of possession;

(ii) The enforcement, against the banking organization or the business
and property of the banking organization in this state, of a judgment
obtained before the taking of possession;

(iii) Any act to obtain possession of property of the banking
organization or of property from the banking organization or to exercise
control over property of the banking organization;

(iv) Any act to create, perfect, or enforce any lien against property
of the banking organization;

(v) Any act to create, perfect or enforce against property of the
banking organization any lien to the extent that such lien secures a
claim that arose before the taking of possession; and

(vi) Any act to collect, assess, or recover a claim against the
banking organization that arose before the taking of possession.

(2) The superintendent's taking of possession of a banking
organization and the liquidation of same does not operate as a stay of
or as an injunction against:

(i) The filing of a claim pursuant to section six hundred twenty of
this article in the liquidation of the banking organization; the making
of a demand upon the superintendent pursuant to section six hundred
eighteen-a of this article to decide whether to assume or repudiate a
contract of the banking organization; the exercise of any setoff
otherwise permissible under applicable law except as limited by
subdivision two of section six hundred fifteen of this article; the
right of any secured creditor with a perfected security interest or
other valid lien or security interest enforceable against third parties
to retain collateral, including any right of such secured creditor under
any security arrangement related to a qualified financial contract, as
defined in section six hundred eighteen-a of this article, to retain
collateral and to apply such collateral in accordance with paragraph (d)
of subdivision two of section six hundred eighteen-a of this article;
any automatic termination in accordance with the terms of any qualified
financial contract or any right to cause the termination or liquidation
of any qualified financial contract, as defined in section six hundred
eighteen-a of this article, in accordance with the terms thereof; any
right to offset or net out any termination value, payment amount, or
other transfer obligation arising under or in connection with one or
more such qualified financial contracts; or the commencement of an
action under section six hundred seven of this article or any other
action relating to the liquidation before the supreme court justice
overseeing the liquidation of the banking organization;

(ii) The commencement or continuation of a criminal action or
proceeding against the banking organization;

(iii) The commencement or continuation of an action or proceeding by a
governmental unit to enforce such governmental unit's police or
regulatory power;

(iv) The enforcement of a judgment, other than a money judgment,
obtained in an action or proceeding by a governmental unit to enforce
such governmental unit's police or regulatory power;

(v) The issuance to the banking organization by a governmental unit of
a notice of tax deficiency; and

(vi) The commencement or continuation of a judicial action or
proceeding by a secured creditor with a perfected security interest, or
other valid lien or security interest enforceable against third parties,
including any right of such secured creditor under any security
arrangement related to a qualified financial contract, as defined in
section six hundred eighteen-a of this article, to enforce such security
interest or lien.

(3) Except as otherwise provided in this paragraph:

(i) The stay or enjoining of an act against property of the banking
organization under this paragraph shall continue until such property is
no longer the property of the superintendent in possession of the
banking organization; and

(ii) The stay or enjoining of any other act under this paragraph shall
continue until the superintendent has concluded liquidating the banking
organization.

(4) For good cause shown, on request of a party in interest and after
notice and a hearing, the supreme court justice overseeing the
liquidation may grant relief from the stay or injunction provided under
this paragraph, such as by terminating, annulling, modifying or
conditioning such stay or injunction.

(5) In the case of any willful violation of a stay or injunction
provided in this paragraph by any person or entity who has knowledge of
the superintendent's taking of possession of the banking organization
that is the subject of the stay or injunction, the superintendent shall
recover actual damages, including costs and attorneys' fees and, in
appropriate circumstances, may recover punitive damages.

(e) No action against the superintendent, his or her deputies, special
deputies, attorneys, agents or employees, or against a banking
organization whose business and property have been taken over by him or
her, with respect to any matter arising out of the liquidation,
administration, distribution or other disposition by or on behalf of the
superintendent

(i) of the estate of such banking organization, or

(ii) of money or property in its possession or under its control as
executor, administrator, trustee, guardian, committee, conservator, or
other fiduciary capacity, or as bailee, pledgee, depository, agent or
otherwise, or

(iii) of money or property in or removed from a safe, vault or box of
which it is or was the lessor, shall be commenced subsequent to either
(a) three years after the accrual of such cause of action, or (b) the
expiration of such period of limitation as may be otherwise applicable
thereto under the provisions of any other statute, whichever period is
shorter. A cause of action shall be deemed to accrue within the meaning
of this paragraph, when the facts upon which such cause of action is
based come into existence. Nothing in this paragraph shall be deemed to
extend or otherwise affect the period of limitation in section six
hundred twenty-five of this article provided with respect to claims or
causes of action therein referred to.

2. (a) The superintendent may, in the name of any banking organization
of which he is in possession, execute, acknowledge and deliver any and
all deeds, assignments, bills of sale, releases, extensions,
satisfactions and other instruments necessary and proper to effectuate
any sale, lease or transfer of real or personal property or to carry
into effect any power conferred or duty imposed upon him by this article
or by order of the supreme court. Any instrument executed pursuant to
the authority hereby given shall be as valid and effectual for all
purposes as though executed by the officers of the banking organization.

(b) The superintendent shall not be required to pay any fee to any
clerk, sheriff, register or other public officer for entering, filing,
docketing, registering, recording, executing, issuing a copy,
transcript, extract or certificate of, or authenticating or exemplifying
any paper, record or instrument pertaining to the exercise by the
superintendent of any of the powers conferred or duties imposed upon him
by any of the provisions of this article, whether or not such paper,
record or instrument be executed by the superintendent and whether or
not it is connected with an action.

3. The word "action" contained in this section and section six hundred
twenty-five of this article is to be construed as including a special
proceeding or any proceeding therein or in an action. A cause of action
upon which an action cannot be maintained, as prescribed in this
article, cannot be effectually interposed as a defense, set-off or
counterclaim.