Windward Bora LLC v. Sotomayor

23-546-cv
Windward Bora LLC v. Sotomayor
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
A UGUST TERM 2023
No. 23-546-cv
WINDWARD BORA LLC,
Plaintiff-Counter-Defendant-Appellee,
v.
JOHN SOTOMAYOR , A LEXANDRIA L OAIZA,
Defendants-Counter-Claimants-Appellants,
and
A MERICAN E XPRESS CENTURION B ANK, MIDLAND F UNDING LLC, DBA
IN NEW YORK AS MIDLAND F UNDING OF D ELAWARE , LLC, C APITAL
O NE B ANK (USA), N.A., JOHN D OE , JANE D OE ,
Defendants.
On Appeal from the United States District Court for the Southern
District of New York
A RGUED: JANUARY 9, 2024
D ECIDED: A UGUST 28, 2024

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Before: S TEVEN J. MENASHI, S ARAH A. L. MERRIAM , Circuit
Judges, and STEPHEN A. V ADEN, Judge.*
This diversity action is the third attempt to foreclose on the
Appellants’ property. Partners for Payment Relief DE II, LLC
(“Partners for Payment”), the predecessor-in-interest to Plaintiff
Windward Bora LLC (“Windward Bora”), brought an action in 2013
that was voluntarily discontinued. Windward Bora then brought an
action in 2019, but the District Court dismissed it for failure to satisfy
statutory notice requirements. Windward Bora brought this third
action outside the statute of limitations period but maintains that the
action is permitted under a savings provision in New York state law,
which provides that, if a foreclosure action is timely commenced and
terminated for any reason other than a judgment on the merits or
other enumerated exceptions, the “original plaintiff” may bring the
action again within six months even if the statute of limitations has
expired. N.Y. C.P.L.R. § 205-a(a).
Summary judgment was properly granted to Windward Bora
because Windward Bora is the “original plaintiff” for purposes of the
savings provision — that is, the same plaintiff as in the timely 2019
Action. Windward Bora may therefore relate the Present Action
back to its timely commencement of the 2019 Action. The
Appellants forfeited their second argument that the 2019 Action
cannot trigger the savings statute because it was dismissed for
violation of a “court rule.”
Accordingly, we AFFIRM.
* Judge Stephen Alexander Vaden of the United States Court of
International Trade, sitting by designation.

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S TEVEN A MSHEN, Petroff Amshen LLP, Brooklyn, N.Y.
(James Tierney on the brief), for Defendants-Counter-
Claimants-Appellants.
RAFI H ASBANI , Hasbani & Light, P.C., New York, N.Y.,
for Plaintiff-Counter-Defendant-Appellee.
V ADEN, Judge:
John Sotomayor and Alexandria Loaiza (“Appellants”) appeal
from the judgment of the U.S. District Court for the Southern District
of New York (Seibel, J.) granting Plaintiff Windward Bora LLC’s
(“Windward Bora”) Motion for Summary Judgment. On appeal,
they maintain that Windward Bora’s current foreclosure action (the
“Present Action”) is barred by the statute of limitations and that the
Present Action cannot use the savings provision under New York
Civil Practice Law and Rules § 205-a to relate back to its timely prior
action (the “2019 Action”).
This is the third attempt to foreclose on Appellants’ property.
Windward Bora’s predecessor-in-interest, Partners for Payment
Relief DE II, LLC (“Partners for Payment”), brought the first
foreclosure action in 2013 (the “2013 Action”), which it voluntarily
discontinued in 2018. See N.Y. C.P.L.R. § 3217. Windward Bora
then acquired the subject note and mortgage and brought another
foreclosure action — the 2019 Action — which the District Court
dismissed after an oral Motion for Summary Judgment based on
Windward Bora’s failure to provide foreclosure notices required
under New York law. Windward Bora then brought the Present
Action. Windward Bora does not dispute that the Present Action
was brought outside the statute of limitations period, but it maintains
that the Present Action is permitted under a savings provision in
C.P.L.R. § 205-a(a).

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We agree with the District Court that Windward Bora may
apply the savings provision to the Present Action. We hold that
Windward Bora is the “original plaintiff” for purposes of C.P.L.R.
§ 205-a(a) and that Appellants forfeited their argument that the 2019
Action terminated for violation of a “court rule.” Accordingly, we
AFFIRM.
BACKGROUND
I
In 2007, Appellants executed a note and mortgage with Wells
Fargo to secure a residential loan. Wells Fargo assigned the note to
Partners for Payment in 2010.
On December 31, 2013, Partners for Payment brought the 2013
Action based on a default by Appellants in December 2008. In the
2013 Action, Partners for Payment chose to accelerate the loan, which
started a six-year statute of limitations period under C.P.L.R. § 213.
See N.Y. C.P.L.R. § 213(4). On March 2, 2018, Partners for Payment
voluntarily discontinued the 2013 Action. Windward Bora acquired
ownership and possession of the note and mortgage on August 15,
2018.
II
Windward Bora timely commenced the 2019 Action on May 16,
2019. But on April 15, 2021, Windward Bora told the District Court
that it would not be able to prove at trial that it had provided the
Appellants with the statutorily required notices under N.Y.
R.P.A.P.L. §§ 1303 and 1320. See Windward Bora, LLC v. Sotomayor,
No. 21-CV-7161 (CS), 2023 U.S. Dist. LEXIS 46850, at *1, *2–3 (S.D.N.Y.
Mar. 20, 2023) (citing N.Y. R.P.A.P.L. §§ 1303, 1320).1 Judge Seibel
1 R.P.A.P.L. § 1303 requires the foreclosing party to deliver a notice entitled
“Help for Homeowners in Foreclosure,” which advises that failure to

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allowed Appellants to make an oral Motion for Summary Judgment
“on the grounds that the undisputed facts demonstrated that Plaintiff
had not provided those notices” and granted the Motion on that basis.
Id. at *20. This dismissal occurred after the six-year statute of
limitations had expired.
On August 24, 2021, less than six months after the District Court
dismissed the 2019 Action, Windward Bora filed the Present Action
based on diversity jurisdiction. Appellants asserted various
affirmative defenses in their Answer — including that the statute of
limitations had expired and res judicata applied — and brought a
counterclaim to quiet title under R.P.A.P.L. § 1501(4).
Windward Bora moved for summary judgment; Appellants
opposed the Motion and cross-moved for summary judgment.
Appellants argued that this action is time barred because Windward
Bora filed it more than six years after the loan was accelerated. Id. at
*14–15 (citing EMC Mortg. Corp. v. Patella, 720 N.Y.S.2d 161, 162 (App.
Div. 2001) (“[O]nce an installment loan is accelerated, the entire
amount comes due, and the statute of limitations begins to run on the
full amount.”)). Windward Bora countered that its suit was timely
because it satisfied the savings provision of C.P.L.R. § 205(a), which
at that time applied to foreclosure actions. Id. at *16–18; see N.Y.
C.P.L.R. § 205(a) (McKinney 2008) (amended 2022).
respond to the summons and complaint could result in the recipients’
losing their home, identifies sources of assistance, and warns about
foreclosure rescue scams. N.Y. R.P.A.P.L. § 1303. R.P.A.P.L. § 1320
states that “the summons shall contain” a notice telling the recipients that
they risk a default judgment “[i]f [they] do not respond to this summons
and complaint.” N.Y. R.P.A.P.L. § 1320.

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III
While the Present Action was pending before the District
Court, New York enacted the Foreclosure Abuse and Prevention Act
(“FAPA”), 2022 N.Y. Sess. Laws Ch. 821 (McKinney). See Windward
Bora, 2023 U.S. Dist. LEXIS 46850, at *16. It implements a new, more
restrictive savings provision for certain foreclosure actions. Compare
N.Y. C.P.L.R. § 205(a) (McKinney 2019) (amended 2022) (excluding
application of the savings provision for actions terminated for neglect
to prosecute where there is “a general pattern of delay in proceeding
with the litigation”), with N.Y. C.P.L.R. § 205-a(a) (excluding
application of the savings provision for actions terminated for “any
form of neglect” and listing examples). FAPA created C.P.L.R.
§ 205-a, which effectively provides for one do-over when an
otherwise timely action is dismissed for a technical defect. See N.Y.
C.P.L.R. § 205-a(a). Neither party has challenged the retroactive
application of FAPA’s savings provision in this case.2
2 In any case, we believe the result would be the same under either the old
C.P.L.R. § 205(a) or the new C.P.L.R. § 205-a(a) created by FAPA. The old
C.P.L.R. § 205(a) referred simply to the “plaintiff” in the “timely
commenced … prior action,” while the new C.P.L.R. § 205-a(a) refers to the
“original plaintiff.” Compare N.Y. C.P.L.R. § 205(a) (McKinney 2019)
(amended 2022), with N.Y. C.P.L.R. § 205-a(a). In our view, the New York
Legislature added the word “original” to make explicit that the new action
generally must be brought by the same person or entity who brought the
timely prior action. Under C.P.L.R. § 205-a(a)(1), assignees and
successors-in-interest “shall not be permitted to commence the new action”
unless they “plead[] and prov[e]” that they are “acting on behalf of the
original plaintiff” in the timely prior action. N.Y. C.P.L.R. § 205-a(a)(1).
But, as explained below, the “original plaintiff” is still the plaintiff in the
timely prior action to which the plaintiff in the new action seeks relation
back, regardless of whether that prior action was the one that started the
statute of limitations period. Because Windward Bora is the plaintiff in
both the Present Action and the 2019 Action, the Present Action is permitted
under C.P.L.R. § 205-a(a).

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The District Court allowed the parties to submit supplemental
briefs to address FAPA’s impact on the pending motions. The
parties and the District Court employed pre-FAPA cases applying
C.P.L.R. § 205(a) in their analyses. See Windward Bora, 2023 U.S. Dist.
LEXIS 46850, at *17–19, *17 n.11 (“Like § 205-a, § 205(a) acts as a
‘savings statute,’ generally providing that a timely commenced action
dismissed without prejudice can be refiled by ‘the plaintiff’ within six
months of dismissal, even if the statute of limitations has expired.”).
In their supplemental letter brief, Appellants argued that Windward
Bora could not avail itself of the savings provision of C.P.L.R. § 205-a
because the District Court had dismissed the 2019 Action on the
merits, and Windward Bora is a successor-in-interest to Partners for
Payment, rather than an “original plaintiff” as required by the statute.
See id. at *22–23. Appellants did not raise any arguments regarding
the other enumerated exceptions to the savings provision such as lack
of personal jurisdiction or violation of a court rule.
The District Court granted Windward Bora’s Motion for
Summary Judgment and denied Defendants’ Cross-Motion. It held
that Windward Bora could apply the savings provision because: (1)
the “prior grant of summary judgment to Defendants in the 2019
Action” was “not a finding on the merits that would prevent
application of CPLR § 205-a”; and (2) “[t]he ‘original plaintiff’ here is
Windward [Bora] – the party that brought the 2019 Action …. CPLR
§ 205-a is not being applied to the 2013 action brought by [Partners
for Payment], but to the 2019 Action brought by [the] Plaintiff.” Id.
Defendants timely appealed to this Court.
DISCUSSION
I
Appellants argue that the savings provision is inapplicable for
two reasons: (1) Partners for Payment, not Windward Bora, is the
“original plaintiff” for purposes of the statute; and (2) the 2019 Action

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terminated under an exception listed in C.P.L.R. § 205-a. 3 See
Appellants’ Br. at 11, 16.
We review the District Court’s grant of summary judgment de
novo and will affirm when there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Kasiotis v. N.Y. Black Car Operators’
Inj. Comp. Fund, Inc., 90 F.4th 95, 98 (2d Cir. 2024). “The
interpretation of a statute is a question of law, which we review de
novo.” United States v. Bedi, 15 F.4th 222, 225–26 (2d Cir. 2021).
Here, subject-matter jurisdiction is based on diversity, and we
are deciding questions of state law. Therefore, “we must ‘predict
how [New York’s] highest court would resolve’” these issues.
Kasiotis, 90 F.4th at 99 (quoting Runner v. N.Y. Stock Exch., Inc., 568
F.3d 383, 386 (2d Cir. 2009)). The New York Court of Appeals holds
that the “primary consideration” in statutory interpretation is “to
ascertain and give effect to” the legislature’s intent. Id. (quoting
Kuzmich v. 50 Murray St. Acquisition LLC, 34 N.Y.3d 84, 91 (2019)).
Because a statute’s text is the “clearest indicator” of legislative intent,
“courts should construe unambiguous language to give effect to its
plain meaning.” Id. (quoting Avella v. City of New York, 29 N.Y.3d
425, 434 (2017)); see also Artis v. D.C., 583 U.S. 71, 83 (2018) (“In
determining the meaning of a statutory provision, we look first to its
language, giving the words used their ordinary meaning.” (citation
and quotation marks omitted)).
3 Appellants argue in their opening brief that failing to comply with
statutory notice requirements in the 2019 Action “violat[ed] a court rule.”
Appellants’ Br. at 17. In their reply brief, they recharacterize this
argument as a “violat[ion of] a court rule, [which] ultimately resulted in a
failure to obtain personal jurisdiction over Defendants[.]” Appellants’
Reply Br. at 5.

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A
The first issue is whether Windward Bora is the “original
plaintiff” and therefore able to avail itself of the savings provision
found in C.P.L.R. § 205-a(a). Appellants argue that the term
“original plaintiff” in the statute refers to the plaintiff whose action
caused the statute of limitations to commence running — here,
Partners for Payment, not Windward Bora. Appellants’ Br. at 11.
We start with the statute’s text. C.P.L.R. § 205-a(a) states:
If an action … is timely commenced and is terminated in
a manner other than a voluntary discontinuance, a
failure to obtain personal jurisdiction over the defendant,
a dismissal of the complaint for any form of neglect . . .
for violation of any court rules or individual part rules,
for failure to comply with any court scheduling orders,
or by default due to nonappearance for conference or at
a calendar call, or by failure to timely submit any order
or judgment, or upon a final judgment upon the merits,
the original plaintiff, or, if the original plaintiff dies and
the cause of action survives, his or her executor or
administrator, may commence a new action upon the
same transaction or occurrence or series of transactions
or occurrences within six months following the
termination, provided that the new action would have
been timely commenced within the applicable
limitations period prescribed by law at the time of the
commencement of the prior action and that service upon
the original defendant is completed within such six-
month period.
N.Y. C.P.L.R. § 205-a(a) (emphases added).

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We note that C.P.L.R. § 205-a does not limit “an action” to the
very first action that causes the statute of limitations to run. Instead,
the savings provision applies to a “prior action” that was (1) timely
commenced and (2) terminated for a reason other than the listed
exceptions. Id. If the prior action satisfies both criteria, then the
same plaintiff from that “prior action” may bring a new action within
six months of the prior suit’s termination. Id.; cf. Ace Sec. Corp. v. DB
Structured Prod., Inc., 38 N.Y.3d 643, 651 (2022) (“‘The effect of
[C.P.L.R. § 205(a)] is quite simple: if a timely brought action has
been terminated for any reason other than one … specified in the
statute, the plaintiff may commence another action based on the same
transactions or occurrences within six months of the dismissal of the
first action’ and obtain the benefit of the prior timely filing for statute
of limitations purposes.”) (quoting George v. Mt. Sinai Hosp., 47 N.Y.2d
170, 175 (1979)).
Thus, when a plaintiff’s timely prior claim is dismissed outside
the limitations period for any reason other than those enumerated in
C.P.L.R. § 205-a, that same plaintiff may use the savings provision to
file one more action; and that new action effectively inherits the
timely commencement date of the prior action. See N.Y. C.P.L.R.
§ 205-a(a); cf. U.S. Bank N.A. v. Fox, 188 N.Y.S.3d 52, 53 (App. Div.
2023) (“Like CPLR 205, CPLR 205-a contains a ‘savings clause’
provision that permits [a] plaintiff in a mortgage foreclosure action
that has been terminated to commence a new action within six
months.”).
Appellants maintain that the “original plaintiff” in C.P.L.R.
§ 205-a is the plaintiff in the action that triggered the commencement
of the limitations period. Although it may often be true in practice
that the “prior action” was also the action that began the limitations
period, see, e.g., Fox, N.Y.2d at 52–53, there is no basis to read an
additional requirement to that effect into the statute. The statutory
text answers the question of which “action” is relevant for purposes
of the savings provision: It is the “prior action” to which the instant

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suit seeks to relate back. N.Y. C.P.L.R. § 205-a(a) (“If an action … is
timely commenced and is terminated in any manner other than [an
enumerated exception], the original plaintiff … may commence a new
action …, provided that the new action would have been timely
commenced … at the … commencement of the prior action ….”
(emphases added)). It is the “prior action” we examine to determine
whether the earlier lawsuit terminated for an acceptable reason and
who the “original plaintiff” is.
This interpretation accords with common sense. It is only
after the limitations period has run that the savings provision comes
into play. See id. (stating that the savings provision applies within
six months of the prior action’s termination “provided that the new
action would have been timely commenced within the applicable
limitations period … at the time of the commencement of the prior
action ….”). And the savings provision is concerned only with the
“prior action” that was timely filed to which the otherwise untimely
new action seeks to relate. Id. The 2013 Action is relevant for
purposes of C.P.L.R. § 205-a only as the event that started the running
of the limitations period. See N.Y. C.P.L.R. § 213(4). But to
determine who is the “original plaintiff,” the Court looks to the
plaintiff in the immediately “prior action” that terminated outside of
the statute of limitations — in this case, the 2019 Action.
We therefore hold that, to determine whether the new savings
provision applies, a court must apply the three-part test of C.P.L.R.
§ 205-a to the immediately prior action that terminated outside the
statute of limitations. If that immediately prior action (1) was timely
filed, (2) was filed by the same plaintiff as the plaintiff in the present
action,4 and (3) terminated for a reason not listed in the statute, the
plaintiff may invoke the savings provision to gain one final chance to
pursue the foreclosure action. Cf. Ray v. Ray, 22 F.4th 69, 73–74 (2d
4 This includes a plaintiff’s executor or administrator should the plaintiff
die. See N.Y. C.P.L.R. § 205-a(a).

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Cir. 2021) (“[B]oth federal and New York courts have consistently
described section 205(a) as authorizing a ‘second’ opportunity to file
a claim after a ‘first’ or ‘initial’ claim is dismissed on a non-merits final
judgment.”).
Although C.P.L.R. § 205-a is a new provision of law that has not
yet been definitively interpreted by the New York Court of Appeals,
we find support for our conclusion in New York state court decisions
applying C.P.L.R. § 205(a), the predecessor to C.P.L.R. § 205-a(a).
The analysis of Deutsche Bank National Trust Co. v. Baquero is
instructive because it involved three foreclosure actions. See 143
N.Y.S.3d 400, 401 (App. Div. 2021). In Deutsche Bank, the plaintiff
commenced an action in 2007 and voluntarily discontinued it in
August 2010. Id. In June 2010, the plaintiff commenced a second
action, and the New York Supreme Court dismissed the 2010 action
without prejudice in April 2017. Id. The plaintiff commenced a
third action in September 2017. Id.
In moving for summary judgment, the defendant in Deutsche
Bank established that the plaintiff accelerated the mortgage debt with
the 2010 action and brought the 2017 action more than six years later.
Id. But as the trial court noted, “Since the second action was
commenced within the 6-year period of limitation as measured from
the acceleration of the loan in 2010, and since the present action was
commenced … within six months after the … dismissal of the second
action … the present action is … afforded the benefit of CPLR 205(a).”
Deutsche Bank Nat’l Tr. Co. v. Baquero, No. 713058/17, 2018 N.Y. Misc.
LEXIS 11370, at *14 (Sup. Ct., Queens Cnty. July 31, 2018). The
Appellate Division affirmed, finding it irrelevant that the 2017 action
was the third foreclosure attempt. See Deutsche Bank, 143 N.Y.S.3d at
401. Nor was it relevant that the plaintiff had voluntarily
discontinued the 2007 action. Cf. N.Y. C.P.L.R. § 205(a) (McKinney
2019) (amended 2022) (listing “voluntary discontinuance” as an
exception that prevents application of the savings provision).
Instead, the C.P.L.R. § 205(a) analysis in both the majority and

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dissenting opinions turned on whether the immediately prior second
action terminated for neglect to prosecute. See Deutsche Bank, 143
N.Y.S.3d at 401; id. at 402–05 (Barros, J., dissenting).
Deutsche Bank is analogous to this case even though the same
plaintiff brought all three actions at issue. Here, Partners for
Payment’s 2013 Action caused the statute of limitations to run, but
Windward Bora brought the Prior Action in 2019. The Deutsche Bank
court focused on the timing and termination circumstances in the
second of the three actions because that was the action that the
plaintiff sought to relate back to in its third action. See id. at 401
(“The defendant … demonstrated that this action was commenced …
more than six years [after acceleration] …. Contrary to the
defendant’s contention and the finding of our dissenting colleague,
the 2010 action was not dismissed for neglect to prosecute, a category
of dismissal that renders CPLR 205(a) inapplicable.”). The amended
statute — which directs us to consider the “original plaintiff” in the
“prior action” — gives us no reason to depart from this holding.
N.Y. C.P.L.R. § 205-a(a) (“[T]he original plaintiff … may commence a
new action … within six months following the termination [of an
action], provided that the new action would have been timely
commenced … at the time of the commencement of the prior action
….”).
Appellants respond that, even if Windward Bora is the
“original plaintiff,” the remedial purpose of the savings provision
should prevent “repeated bites at the apple and frustrating the statute
of limitations entirely.” Appellants’ Br. at 9. That is not what has
occurred here. The statute of limitations has expired. The savings
provision permits one final attempt to foreclose on the house within
six months of the termination of the prior action. See N.Y. C.P.L.R.
§ 205-a(a)(2) (“[I]n no event shall the original plaintiff receive more
than one six-month extension.”). Windward Bora availed itself of
that opportunity. Had it not done so, Appellants would have been
literally home free.

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The plain text of the statute confirms the District Court’s
determination that Windward Bora is the “original plaintiff” entitled
to invoke the savings provision to pursue its foreclosure action
against Appellants. Appellants’ arguments to the contrary fail.
We decline to place a limitation in the statute’s text the New York
Legislature did not author. See Diegelman v. City of Buffalo, 28 N.Y.3d
231, 233 (2016) (“We may not create a limitation that the Legislature
did not enact.”) (quoting Theroux v. Reilly, 1 N.Y.3d 232, 237 (2003)).
B
Having failed to demonstrate that Windward Bora is not
entitled to benefit from the savings provision as the original plaintiff,
Appellants alternatively argue that Windward Bora cannot use the
savings provision because the 2019 Action terminated under a
statutorily enumerated exception: violation of a “court rule.” The
Court need not consider this new argument because Appellants failed
to raise it in District Court.
During the pendency of this action in the District Court, Judge
Seibel gave all parties an opportunity to submit supplemental briefs
on the impact of the new savings provision. Appellants argued that
Windward Bora could not use the savings provision because (1)
Windward Bora “is not the ‘original plaintiff’ entitled to avail itself of
the savings [provision]” and (2) “the award of summary judgment in
the 2019 Action acted as a final judgment on the merits, thereby
precluding application of the savings [provision] ….” App’x at 405.
The District Court rejected both arguments. Windward Bora, 2023
U.S. Dist. LEXIS 46850, at *22. Although Appellants continue to
press their “original plaintiff” argument on appeal, they have not

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challenged the District Court’s holding that the 2019 Action did not
terminate because of a final judgment on the merits.5
However, Appellants have raised an entirely new argument.
They now argue that the savings provision is inapplicable because
termination of the 2019 Action for failure to comply with the statutory
notice provisions constitutes a termination for “violation” of “court
rules.” Appellants’ Br. at 17. In their reply brief, Appellants shift
their theory yet again, arguing that “failure to comply with the notice
requirements … violated a court rule and ultimately resulted in a
failure to obtain personal jurisdiction over Defendants, which …
precludes application of CPLR § 205-a.” Appellants’ Reply at 4–5.
We decline to consider either version of this argument because
Appellants did not raise it before the District Court. See, e.g., Gross
v. Rell, 585 F.3d 72, 95 (2d Cir. 2009) (“[I]ssues not sufficiently argued
are in general deemed waived and will not be considered on appeal.”
(quoting Frank v. United States, 78 F.3d 815, 833 (2d Cir. 1996))). 6
5 This argument is foreclosed by New York precedent. The New York
Court of Appeals has explained that “failure to comply with a procedural
condition precedent may be a fatal flaw to maintaining the prior action and
grounds for dismissal but is not a judgment on the merits for purposes of
CPLR 205(a).” U.S. Bank Nat’l Ass’n v. DLJ Mortg. Cap., Inc., 33 N.Y.3d 72,
80 (2019). The Court of Appeals in U.S. Bank was applying C.P.L.R.
§ 205(a), not C.P.L.R. § 205-a(a), but we agree with the District Court that
Appellants “have provided no persuasive reason … why [we] should
interpret § 205-a differently than § 205(a) in this context.” Windward Bora,
2023 U.S. Dist. LEXIS 46850, at *21–22.
6 The second version of the argument — that a dismissal for violating
statutory notice requirements constitutes a dismissal for lack of personal
jurisdiction — is also improper because it was raised for the first time in
Appellants’ reply brief. See, e.g., Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.
1999) (“We need not consider this argument because it is raised for the first
time in his reply brief.”); McCarthy v. S.E.C., 406 F.3d 179, 186 (2d Cir. 2005)
(“[A]rguments not raised in an appellant’s opening brief, but only in [a]
reply brief, are not properly before an appellate court ….”). Moreover,

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“Although we may exercise discretion to consider waived arguments
where necessary to avoid a manifest injustice, ‘the circumstances
normally do not militate in favor of an exercise of discretion to
address … new arguments on appeal where those arguments were
available to the [parties] below and they proffer no reason for their
failure to raise the arguments below.’” In re Nortel Networks Corp.
Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (quoting Bogle-Assegai v.
Connecticut, 470 F.3d 498, 504 (2d Cir. 2006)). Mindful of our role as
a court sitting in diversity, we find that Appellants have forfeited both
versions of this argument and decline to address them in the first
instance.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is
AFFIRMED.
Appellants waived any objection to personal jurisdiction in the 2019 Action
by appearing in the action without timely asserting a personal jurisdiction
defense. See Kaplan v. Bank Saderat PLC, 77 F.4th 110, 117 (2d Cir. 2023) (“In
general, an appearing defendant that fails to timely assert [lack of personal
jurisdiction] in its initial motion or pleading waives or forfeits the right to
raise it in later stages of litigation ….”) (citing “R” Best Produce, Inc. v.
DiSapio, 540 F.3d 115, 123 (2d Cir. 2008)) (footnote omitted).

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