| Hudson City Sav. Bank v DePasquale |
| 2014 NY Slip Op 00091 [113 AD3d 595] |
| January 8, 2014 |
| Appellate Division, Second Department |
| Hudson City Savings Bank, Successor by Merger to SoundFederal Savings Bank, Formerly Known as Sound Federal Savings and LoanAssociation, Appellant, v Neil H. DePasquale et al., Respondents, et al.,Defendants. |
—[*1] Clair & Gjertsen, Scarsdale, N.Y. (Ira S. Clair of counsel), for respondents.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Westchester County (Lefkowitz, J.), entered May 22, 2012, whichdenied its motion for summary judgment and granted the cross motion of the defendantsNeil H. DePasquale and Deborah L. DePasquale, in effect, for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
Contrary to the plaintiff's contentions, it failed to tender sufficient evidencedemonstrating the absence of material issues as to its strict compliance with RPAPL1304 (see Aurora Loan Servs.,LLC v Weisblum, 85 AD3d 95, 105-106 [2011]). As the plaintiff concedes, itsnotice to the homeowners required by RPAPL 1304 contained a factual inaccuracy. Theplaintiff's failure to make a prima facie showing of strict compliance with RPAPL 1304requires denial of its motion for summary judgment, regardless of the sufficiency of theopposing papers (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106;Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Based on the same evidence, the defendants Neil H. DePasquale and Deborah L.DePasquale on their cross motion, in effect, for summary judgment, established theirprima facie entitlement to judgment as a matter of law dismissing the complaint insofaras asserted against them. In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly denied the plaintiff's motion for summaryjudgment and granted the DePasquales' cross motion for summary judgment dismissingthe complaint insofar as asserted against them.
The plaintiff's remaining contention need not be reached in light of ourdetermination. Rivera, J.P., Balkin, Hall and Sgroi, JJ., concur.