For those occasions when a mortgage lender may elect to sue on the note—as opposed to foreclosing the mortgage—saving service of the 90-day notice which might otherwise be elicited by the pervasively ubiquitous RPAPL §1304 is meaningful.

Is the notice required? The Second Department says yes [Deutsche Bank Natl. Trust Co. v. Webster, 143 A.D.3d 636, 37 N.Y.S.3d 283 (2016)] while the Fourth Department says no [M&T Bank v. Benjamin, 145 A.D.3d 1519, 44 N.Y.S.3d 301 (Fourth Dept. 2016)]. In short then, until this issue is addressed by the Court of Appeals, the answer to the question remains uncertain—although it is well worthy of resolution.

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