| Signature Bank v Epstein |
| 2012 NY Slip Op 03996 [95 AD3d 1199] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Signature Bank, Appellant, v Arlene L. Epstein et al.,Respondents. |
—[*1] Clair & Gjertsen, Scarsdale, N.Y. (Ira S. Clair of counsel), for respondents.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Westchester County (Tolbert, J.), entered June 8, 2011,as granted those branches of the defendants' motion which were, in effect, pursuant to CPLR5015 (a) (4) to vacate a judgment of foreclosure and sale of the same court dated July 14, 2009,and to dismiss the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendants' motion which were, in effect, pursuant to CPLR 5015 (a) (4) tovacate the judgment of foreclosure and sale dated July 14, 2009, and to dismiss the complaint aredenied.
In 2004 the defendants executed and delivered to the plaintiff a home equity line agreementproviding for a home equity line of credit in an amount up to, but not to exceed, $110,000, alongwith a disclosure statement and a note. The defendants promised to pay the plaintiff all loanadvances that the plaintiff made thereunder, plus interest. The note was secured by a mortgage onthe defendants' real property located in New Rochelle. On January 7, 2008, the plaintiff, throughits attorneys, notified the defendants in writing that they were in default under the note and thatthey had 30 days from the date of the letter in which to pay the indebtedness in full before theplaintiff would exercise its legal rights. On July 9, 2008, the plaintiff commenced this foreclosureaction, alleging that the defendants failed to pay the indebtedness due under the note andmortgage. On July 30, 2008, the defendants interposed a verified answer. On March 3, 2009, theSupreme Court granted the plaintiff's motion for summary judgment on the complaint and, onJuly 14, 2009, issued a judgment of foreclosure and sale. On May 4, 2011, the defendants movedby order to show cause, among other things, in effect, pursuant to CPLR 5015 (a) (4) to vacatethe judgment of foreclosure and sale on the ground that the plaintiff's failure to provide thedefendants with 30 days written notice of the defendants' default under the mortgage constituteda failure to satisfy a condition precedent to the commencement of the action, thus depriving theSupreme Court of jurisdiction to enter a default judgment. The defendants also moved to dismissthe complaint, based on the plaintiff's alleged failure to satisfy the condition precedent. In anorder entered June 8, 2011, the Supreme Court, inter alia, granted those branches of the motionon the ground that the plaintiff had [*2]failed to comply with thecondition precedent as to notice that was set forth in the mortgage. The plaintiff appeals. Wereverse the order entered June 8, 2011, insofar as appealed from.
"A judgment of foreclosure and sale entered against a defendant is final as to all questions atissue between the parties, and concludes all matters of defense which were or might have beenlitigated in the foreclosure action" (Long Is. Sav. Bank v Mihalios, 269 AD2d 502, 503[2000]). Here, the defendants waived their right to assert a lack of compliance with a conditionprecedent, as they failed to assert it as an affirmative defense in their answer and failed to raise itin response to the plaintiff's motion for summary judgment on the complaint (see First N.Mortgagee Corp. v Yatrakis, 154 AD2d 433 [1989]).
The defendants' remaining contentions either are without merit, are raised for the first timeon appeal, or have been rendered academic by our determination.
Accordingly, the Supreme Court should have denied those branches of the defendants'motion which were, in effect, to vacate the judgment of foreclosure and sale and, in effect, todismiss the complaint. Dillon, J.P., Florio, Lott and Sgroi, JJ., concur.