Wells Fargo Bank, Nat'l Ass'n v. Rodriguez

210 A.D.3d 728

178 N.Y.S.3d 118

WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., respondent,

v.Mario RODRIGUEZ, appellant, et al., defendants.

2019–12535, 2019–12536

Index No. 3407/16

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

Argued—September 12, 2022

November 2, 2022

Paula A. Miller, P.C., Smithtown, NY, for appellant.

Robertson, Anschutz, Schneid, Crane & Partners, PLLC (Greenberg Traurig, LLP, New York, NY [Ryan Sirianni ], of counsel), for respondent.

BETSY BARROS, J.P., ROBERT J. MILLER, LARA J. GENOVESI, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Mario Rodriguez appeals from two orders of the Supreme Court, Nassau County (Thomas A. Adams, J.), both dated August 30, 2019. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike his answer, to treat his answer as a limited notice of appearance, and for an order of reference, and denied that branch of that defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against him. The second order, insofar as appealed from, granted the same relief to the plaintiff, denied the same relief to the defendant Mario Rodriguez, and appointed a referee to compute the amount due to the plaintiff.

ORDERED that the first order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Mario Rodriguez, to strike his answer, to treat his answer as a limited notice of appearance, and for an order of reference, and substituting therefor provisions denying those branches of the plaintiff's 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 plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Mario Rodriguez, to strike his answer, to treat his answer as a limited notice of appearance, and for an order of reference, and appointed a referee to compute the amount due to the plaintiff is vacated; and it is further,

ORDERED that the appeal from so much of the second order as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Mario Rodriguez, to strike his answer, to treat his answer as a limited notice of appearance, and for an order of reference, and appointed a referee to compute the amount due to the plaintiff 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 defendant Mario Rodriguez.

The plaintiff commenced this action to foreclose a mortgage on real property owned by the defendant Mario Rodriguez (hereinafter the defendant). In his answer, the defendant raised several affirmative defenses, including failure to comply with RPAPL 1304. Subsequently, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, to treat his answer as a limited notice of appearance, and for an order of reference.

The defendant opposed the plaintiff's motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against him. In an order dated August 30, 2019, the Supreme Court, among other things, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, to treat his answer as a limited notice of appearance, and for an order of reference, and denied the defendant's cross motion. In a second order, also dated August 30, 2019, the court, inter alia, granted the same relief to the plaintiff, denied the same relief to the defendant, and appointed a referee to compute the amount due to the plaintiff. The defendant appeals.

" ‘[P]roper service of RPAPL 1304 notice on 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. Alternatively, the plaintiff bears the burden of establishing, prima facie, that RPAPL 1304 is inapplicable, as the loan is not subject to the notice requirements set forth in RPAPL 1304 ’ " ( JP Morgan Chase v. Twersky, 202 A.D.3d 769, 770, 158 N.Y.S.3d 885, quoting U.S. Bank Trust, N.A. v. Sadique, 178 A.D.3d 984, 985, 114 N.Y.S.3d 398 ). RPAPL 1304(1) provides that "with regard to a home loan, at least ninety days...