Prof-2014-S2 Legal Title Trust II v. DeMarco

205 A.D.3d 943

166 N.Y.S.3d 564 (Mem)

PROF–2014–S2 LEGAL TITLE TRUST II, etc., plaintiff,

v.Russell J. DEMARCO, appellant, et al., defendants;

NJCC–NYS Community Restoration Fund, LLC, nonparty-respondent.

2019–11011, 2019–11012

Index No. 50459/17

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

Argued—February 24, 2022

May 18, 2022

Terry D. Horner, Poughkeepsie, NY, for appellant.

Knuckles, Komosinski & Manfro, LLP, Fishkill, NY (Max T. Saglimbeni of counsel), for plaintiff and nonparty-respondent.

BETSY BARROS, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Russell J. DeMarco appeals from two orders of the Supreme Court, Dutchess County (Christi J. Acker, J.), both dated August 22, 2019. The first order, insofar as appealed from, granted those branches of the motion of NJCC–NYS Community Restoration Fund, LLC, which were for summary judgment on the complaint insofar as asserted against the defendant Russell J. DeMarco, to strike that defendant's answer, for an order of reference, and to amend the caption to substitute NJCC–NYS Community Restoration Fund, LLC, as the plaintiff, and denied that defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against him. The second order, insofar as appealed from, granted the same relief to NJCC–NYS Community Restoration Fund, LLC, struck that defendant's answer, and appointed a referee to compute the amount due.

ORDERED that the first order is modified, on the law, by deleting the provisions thereof granting those branches of the motion of NJCC–NYS Community Restoration Fund, LLC, which were for summary judgment on the complaint insofar as asserted against the defendant Russell J. DeMarco, to strike that defendant's answer, and for an order of reference, and denying that defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against him, and substituting therefor a provision denying those branches of the motion of NJCC–NYS Community Restoration Fund, LLC, and granting that defendant's cross motion; as so modified, the first order is affirmed insofar as appealed from, and so much of the second order as granted those branches of the motion of NJCC–NYS Community Restoration Fund, LLC, which were for summary judgment on the complaint insofar as asserted against the defendant Russell J. DeMarco, to strike that defendant's answer, and for an order of reference, and appointed a referee to compute the amount due is vacated; and it is further,

ORDERED that the appeal from so much of the second order as granted those branches of the motion of NJCC–NYS Community Restoration Fund, LLC, which were for summary judgment on the complaint insofar as asserted against the defendant Russell J. DeMarco, to strike that defendant's answer, and for an order of reference, and appointed a referee to compute the amount due, is dismissed as academic in light of our determination on the appeal from the first order; and it is further,

ORDERED that the second order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

In February 2017, the plaintiff commenced this action against, among others, the defendant Russell J. DeMarco (hereinafter the defendant) to foreclose a mortgage on certain real property located in Poughkeepsie. The defendant interposed an answer in which he asserted various affirmative defenses. NJCC–NYS Community Restoration Fund, LLC (hereinafter the respondent), the plaintiff's successor in interest, moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and to substitute itself as the proper plaintiff. The defendant opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against him. By order dated August 22, 2019, the Supreme Court granted the respondent's motion and denied the defendant's cross motion. In a second order, also dated August 22, 2019, the court, inter alia, granted the same relief to the respondent and referred the matter to a referee to ascertain and compute the amount due. The defendant appeals.

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in granting that branch of the respondent's motion which was for leave to amend the caption to substitute the respondent as the plaintiff (see Wells Fargo Bank, N.A. v. Bedell, 186 A.D.3d 1291, 1293, 127 N.Y.S.3d 892 ; Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 25, 98 N.Y.S.3d 273 ; Aurora Loans Servs., LLC v. Mandel, 148 A.D.3d 965, 967, 50 N.Y.S.3d 154 ).

Pursuant to RPAPL 1304, at least 90 days before commencement of an action to foreclose a mortgage on a home loan, a specified notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see id. § 1304[1], [2] ). "Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Deutsche Bank Natl. Trust Co. v. Dennis, 181 A.D.3d 864, 866, 122 N.Y.S.3d 95 [citations and internal quotation marks omitted]). "[P]roof of the requisite mailing ... [is] established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 21, 98 N.Y.S.3d...