| Nationstar Mtge., LLC v Dimura |
| 2015 NY Slip Op 03511 [127 AD3d 1152] |
| April 29, 2015 |
| Appellate Division, Second Department |
[*1]
| Nationstar Mortgage, LLC,Respondent, v Michael Dimura et al., Appellants, et al.,Defendants. |
John M. Schwarz, Jr., Chestnut Ridge, N.Y., for appellants.
Sandelands Eyet, LLP, New York, N.Y. (Chen Kasher and Geoffrey C. Jacobson ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendants Michael Dimura and JacquelineDimura appeal from an order of the Supreme Court, Orange County (Slobod, J.), datedApril 1, 2014, which, upon a decision of the same court also dated April 1, 2014, grantedthe plaintiff's motion, inter alia, for summary judgment on the complaint insofar asasserted against them.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion,inter alia, for summary judgment on the complaint insofar as asserted against thedefendants Michael Dimura and Jacqueline Dimura is denied.
The plaintiff failed to establish its prima facie entitlement to judgment as a matter oflaw. In support of its motion, the plaintiff did not demonstrate that it complied with thecondition precedent contained in the subject mortgage agreement, which required that itprovide the defendants Michael Dimura and Jacqueline Dimura (hereinafter together thedefendants) with a notice of default prior to demanding payment of the loan in full. Theevidence did not establish that the required notice was mailed by first class mail oractually delivered to the notice address if sent by other means, as required by the terms ofthe mortgage agreement (seeWells Fargo Bank, N.A. v Eisler, 118 AD3d 982, 982-983 [2014]; HSBC Mtge. Corp. [USA] vGerber, 100 AD3d 966, 966-967 [2012]; Norwest Bank Minn. v Sabloff,297 AD2d 722, 723 [2002]). The plaintiff's failure to make a prima facie showingrequired the denial of its motion, regardless of the sufficiency of the defendants'opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]).
The parties' remaining contentions either are without merit or need not be reached inlight of our determination. Rivera, J.P., Roman, Sgroi and Duffy, JJ., concur.