The Plaintiff has commenced this action claiming foreclosure of a mortgage in the amount of $ 797,500.00 dated July 7, 2005, given to secure a negative amortization Adjustable Rate Note of the same date, in the amount of $ 725,000.00, which mortgage was recorded with the Clerk of Suffolk County on March 10, 2006 in Liber 21252 of Mortgages at Page 589. The note and mortgage were modified by an Agreement dated September 21, 2009, which has not been recorded. The mortgage constitutes a first lien encumbering the real property known as 127 Beach Road, Westhampton Beach, Town of Southampton, New York. Plaintiff is a mesne assignee of the original mortgagee. Plaintiff, alleging that Defendants defaulted upon the installment which came due on July 1, 2010, thereafter filed its Summons, Verified Complaint and Notice of Pendency herein on August 3, 2015 and Defendant timely filed an Answer and Affirmative Defenses. Following mandatory scheduled foreclosure settlement conferences (see CPLR §3408), Plaintiff moved, pursuant to CPLR §3212 and RPAPL §1321 for both summary judgment an Order of Reference (seq. 001). Defendant ROY DALEO, through counsel, has opposed the motion by way of a cross-motion (seq. 002) for dismissal on a variety of grounds. The within applications were assigned to the undersigned Justice on May 1, 2018.On an application for accelerated or summary judgment made pursuant to CPLR §3212, the Court must be satisfied that there exists neither a triable nor a material issue of fact and that therefore the applicant is entitled to judgment as a matter of law, thereby obviating the necessity for a trial upon the merits of the action, Silliman v. Twentieth Century Fox Film Corporation 3 NY2d 395 (1957), Andre v. Pomeroy 35 NY2d 361 (1974). The moving party must lay bare each and every item of its proof and must clearly demonstrate a prima facie showing of its entitlement to judgment as a matter of law, Alvarez v. Prospect Hospital 68 NY2d 320 (1986). Failure to do so will necessarily result in denial of the application.In an action claiming foreclosure of a mortgage, the applicant meets its prima facie burden by coming forward with the instruments of indebtedess (the note or bond)together with the mortgage and assignments, if any as well as proof of the claimed default, EMC Mortgage Corp. v. Riverdale Associates 291 AD2d 370 (2nd Dept. 2002).Plaintiff’s application facially appears, prima facie, to satisfy the standards for a grant of summary judgment. As a result thereof, the burden then shifts to the opponent to demonstrate the actual existence of a triable or material issue of fact sufficient to defeat summary judgment, Barrett v. Jacobs 255 NY 520 (1931).In order to ascertain whether or not Defendant has submitted admissible proof of the existence of a triable issue of fact, the Court must turn to Defendant’s cross-motion, which is submitted both on its own as well as in opposition to Plaintiff’s application. A careful review thereof leads the Court to the inescapable conclusion that summary judgment in favor of Plaintiff must be denied in view of triable issues of fact that have been raised, most prominently the asserted failure of Plaintiff to comply with the express language of RPAPL §1304. This, in turn, will necessarily result in the granting of Defendant’s cross-motion.The provisions of RPAPL §1304 are both mandatory and quite precise as to the requirements for pre-suit notice. The statute requires the lender (or the assignee or loan servicer, as the case may be) to serve upon the mortgagor a notice of default, by both ordinary and certified mail, in an expressly prescribed form (including certain language, type size, etc.). The same must be served not less than ninety days prior to the commencement of any legal action, Emigrant Mortgage Co. Inc. v. Fitzpatrick 29 Misc 3d 746, rev’d 95 AD3d 1169 (2011). Service of the required notice is a statutory condition precedent to the commencement of the action and the failure to demonstrate compliance therewith mandates dismissal of the action, Aurora Loan Services LLC v. Weisblum 85 AD3d 95 (2nd Dept. 2011). Under the authority of US Bank National Association v. Carey 137 AD3d 894 (2nd Dept. 2016), a defense sounding in non-compliance with the mandates of RPAPL §1304 may be interposed at any stage of the proceeding.Defendant asserts that the notice provided by Plaintiff’s loan servicer fails to comply with the mandates of RPAPL §1304. More specifically, Defendant claims that the notice is wholly silent as to the latest date by which Defendant may return the loan to current status by remitting payment, a critical omission. Defendant also avers that the notice that was sent to him was bundled with several other notices, none of which are permitted by RPAPL §1304 (Fair Debt Collection Practices Act and Service Member’s Civil Relief Act). These errors and omissions by Plaintiff render the notice defective as a matter of law, thereby subjecting the action to dismissal, Hudson City Savings Bank v. Depasquale 113 AD3d 599 (2nd Dept. 2014).Here, Plaintiff has failed to prove that the requisite notice was both provided and served in strict compliance with RPAPL §1304. This, standing alone, warrants dismissal of the action. Therefore, the Court does not reach any of the other defenses and issues that were so succinctly articulated by Defendant’s counsel.Accordingly, it isORDERED that the application of the Plaintiff (seq. 001) for summary judgment and an Order of Reference pursuant to CPLR §3212 and RPAPL §1321 is hereby denied in its entirety; and it is furtherORDERED that the cross-motion by Defendant ROY DALEO (seq. 002) for an Order of dismissal for failure of Plaintiff to comply with RPAPL §1304 is hereby granted; and it is furtherORDERED that this action shall be and is hereby dismissed; and it is furtherORDERED that upon payment of the proper fees by Plaintiff, the Clerk of Suffolk County shall cause the notice of pendency herein to be cancelled and discharged of record; and it is furtherORDERED that any relief not expressly granted shall be and the same is hereby denied.Dated: May 7, 2018Riverhead, New York
