On May 24, 2022, the Court of Appeals issued a decision in Batavia Townhouses, Ltd. v. Council of Churches Hous. Dev. Fund Co., Inc., 2022 NY Slip Op 03361, holding that GOL 17-105, not GOL 17-101, governs whether the statute of limitations has been tolled or revived in an action to foreclose a mortgage, explaining.
In pertinent part, RPAPL § 1501 (4) provides as follows:
Where the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage, or to enforce a vendor’s lien, has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action against any other person or persons, known or unknown, including one under disability as hereinafter specified, to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom.
Thus, a party seeking to cancel or discharge a mortgage must first establish that the limitations period for enforcement by way of foreclosure has already expired. Here, it is undisputed that the six-year statute of limitations to foreclose on Birchwood expired on March 2, 2018, pursuant to CPLR 213 (4), unless it was extended or revived by one of the means set forth in either General Obligations Law §§ 17-101 or 17-105. The question we must answer is whether both or only one of those sections of the General Obligations Law applies here.
Despite what Council contends, General Obligations Law § 17-105, by its express terms, is the sole statute governing the tolling or revival of the statute of limitations for an action to foreclose a mortgage. Section 17-105 (1) states that, among other things, a promise to pay the mortgage debt, if made after the accrual of a right of action to foreclose the mortgage by the express terms of a writing signed by the party to be charged is effective to make the time limited for commencement of the action run from the date of the promise. The statute further states that except as provided in subdivision five, no acknowledgment, waiver or promise has any effect to extend the time limited for commencement of an action to foreclose a mortgage for any greater time or in any other manner than that provided in this section, nor unless it is made as provided in this section. Moreover, section 17-101 excludes itself—and by implication its allowance for a mere acknowledgment to toll or revive the statute of limitations—because it indicates that it does not apply to actions for the recovery of real property.
. . .
Under General Obligations Law § 17-105 (1), the Partnership’s actions in this case could only toll or revive the statute of limitations for the Council to bring a foreclosure action if the Partnership made an express promise to pay the mortgage debt. Accordingly, the Appellate Division correctly concluded that the Partnership’s delivery of its financial statements and tax returns to Council did not meet the requirements of section 17-105 (1) because they were not express promises to pay the mortgage debt.
(Internal quotations and citations omitted).
In dissent, Judge Wilson argued that while GOL 17-105 did apply to the mortgage, GOL 17-101 applied to the associated note because GOL 17-105 by its terms applied only mortgage foreclosures and a suit to collect on a note is an action for money damages, not an action relating to real property. For that reason, he would have held that a question of fact remained on whether the requirements of GOL 17-101 that there be “an acknowledgment or promise contained in a writing signed by the party to be charged thereby” such that claims on the note had been revived.