Bank of Am., N.A. v. Lauro

186 A.D.3d 659

130 N.Y.S.3d 30

BANK OF AMERICA, N.A., respondent,

v.

Jamie LAURO, appellant,

et al., defendants.

2018–10265, 2018–10267, 2019–02540

Index No. 64769/13

Supreme Court, Appellate Division, Second Department, New York.

Submitted—May 18, 2020

August 19, 2020

The Ranalli Law Group, PLLC, Hauppauge, N.Y. (Ernest E. Ranalli of counsel), for appellant.

Winston & Strawn LLP, New York, N.Y. (Heather Elizabeth Saydah of counsel), for respondent.

MARK C. DILLON, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jamie Lauro appeals from (1) an order of the Supreme Court, Suffolk County (Howard H. Heckman, Jr., J.), dated June 14, 2018, (2) an order of the same court also dated June 14, 2018, and (3) a judgment of foreclosure and sale of the same court dated January 14, 2019. The first order dated June 14, 2018, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Jamie Lauro, to strike that defendant's answer, and for an order of reference. The second order dated June 14, 2018, among other things, appointed a referee. The judgment of foreclosure and sale, upon the orders, inter alia, directed the sale of the subject property.

ORDERED that the appeals from the orders dated June 14, 2018, are dismissed; and it is further,

ORDERED that the judgment of foreclosure and sale is reversed, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Jamie Lauro, to strike that defendant's answer, and for an order of reference are denied, the orders dated June 14, 2018, are modified accordingly, and the answer of the defendant Jamie Lauro is reinstated; and it is further,

ORDERED that one bill of costs is awarded to the defendant Jamie Lauro.

The appeals from the orders dated June 14, 2018, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1] ).

On December 20, 2013, the plaintiff commenced the instant action against the defendant Jamie Lauro (hereinafter the defendant) and others to foreclose a mortgage securing a loan in the amount of $350,000. The defendant served an answer raising various affirmative defenses, including non-compliance with RPAPL 1303, 1304, and 1306. In February 2018, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. In two orders, both dated June 14, 2018, the Supreme Court, inter alia, granted the plaintiff's motion and directed the appointment of a referee. The defendant appeals.

RPAPL 1303 requires that a notice titled "Help for Homeowners in Foreclosure," with specified type size and colored paper, be delivered with the summons and complaint in residential foreclosure actions involving owner-occupied, one-to-four family dwellings (see CitiMortgage, Inc. v. Goldberg, 179 A.D.3d 1006, 118 N.Y.S.3d 163 ; Onewest Bank, N.A. v. Mahoney, 154 A.D.3d 770, 771, 62 N.Y.S.3d 144 ; see Prompt Mtge. Providers of N. Am., LLC v. Singh, 132 A.D.3d 833, 18 N.Y.S.3d 668 ). "Proper service of an RPAPL 1303 notice is a condition precedent to the commencement of a foreclosure action, and noncompliance mandates dismissal of the complaint" ( Onewest Bank, N.A. v. Mahoney, 154 A.D.3d at 771, 62 N.Y.S.3d 144 ; see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 98, 923 N.Y.S.2d 609 ). Here, contrary to the defendant's contention, the plaintiff established, prima facie, that it provided notice in compliance with RPAPL 1303 by submitting two affidavits of service, in which the process server attested that he served the defendant with the summons and complaint, together with the notice required by RPAPL 1303 printed on yellow paper; the title of the notice was in bold 20–point type; and the text of the notice was in bold 14–point type (see HSBC Bank USA, N.A. v. Ozcan, 154 A.D.3d 822, 827–828, 64 N.Y.S.3d 38 ; Onewest Bank, N.A. v. Mahoney, 154 A.D.3d at 772, 62 N.Y.S.3d 144 ). However, in opposition, the defendant raised a triable issue of fact with respect to whether the RPAPL 1303 notice was in the proper form, as he asserted in his affidavit that the notice with which he was served "was on white colored paper, the same color papers as the summons and complaint and the heading entitled ‘Help for Homeowners in Foreclosure’ was smaller than twenty-point type" (see Central Mtge. Co. v. Abraham, 150 A.D.3d 961, 55 N.Y.S.3d 336 ).

The plaintiff also failed to establish, prima facie, that it strictly complied with RPAPL 1304. RPAPL 1304 provides that at least 90 days before a lender, an assignee, or a...