| Prompt Mtge. Providers of N. Am., LLC v Singh |
| 2015 NY Slip Op 07636 [132 AD3d 833] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Prompt Mortgage Providers of North America, LLC,Respondent, v Dharamjeet Singh, Appellant, et al.,Defendants. |
Darmin T. Bachu, Richmond Hill, N.Y., for appellant.
David H. Singer & Associates, LLP, New York, N.Y. (Benjamin N. Fink ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant appeals, as limited by his brief,from (1) so much of an order of the Supreme Court, Queens County (Raffaele, J.), datedFebruary 4, 2014, as granted those branches of the plaintiff's cross motion which werefor summary judgment on the complaint and for an order of reference, and (2) so muchof an order of the same court, dated April 17, 2014, as denied that branch of his motionwhich was for leave to renew his opposition to those branches of the plaintiff's crossmotion which were for summary judgment on the complaint and for an order ofreference.
Ordered that the order dated February 4, 2014, is reversed insofar as appealed from,on the law, and those branches of the plaintiff's cross motion which were for summaryjudgement on the complaint and for an order of reference are denied; and it isfurther,
Ordered that the appeal from the order dated April 17, 2014, is dismissed asacademic in light of our determination on the appeal from the order dated February 4,2014; and it is further,
Ordered that one bill of costs is awarded to the appellant.
On March 28, 2008, the defendant Dharamjeet Singh executed a note to borrow theprincipal sum of $250,000 from the plaintiff. The note was secured by a mortgage onSingh's two-family house in Ozone Park, New York. In July 2011, the plaintiffcommenced this action to foreclose the mortgage, alleging that Singh had defaulted in hispayment obligations under the note and mortgage. In its complaint, the plaintiff allegedthat RPAPL 1303, which requires the notice "Help for Homeowners in Foreclosure" tobe delivered with the summons and complaint in residential foreclosure actions involvingan "owner-occupied one-to-four family dwelling," was inapplicable because Singh didnot occupy the mortgaged premises as his residence. In his answer, Singh asserted, as anaffirmative defense, that he had not received the notice required by RPAPL 1303. Singhthereafter moved to dismiss the complaint on a ground not relevant to this appeal, and[*2]the plaintiff cross-moved, inter alia, for summaryjudgment on the complaint and for an order of reference. The Supreme Court grantedthose branches of the plaintiff's cross motion which were for summary judgment on thecomplaint and for an order of reference, concluding, based upon the plaintiff'sevidentiary submissions, that Singh did not live at the mortgage premises and, thus, thisaction did not involve an "owner-occupied" dwelling subject to the RPAPL 1303 noticerequirement.
The plaintiff established its prima facie entitlement to judgment as a matter of law onits complaint by producing the mortgage, the unpaid note, and evidence of default (see Bayview Loan Servicing, LLCv 254 Church St., LLC, 129 AD3d 650 [2015]; Wells Fargo Bank, N.A. vDeSouza, 126 AD3d 965 [2015]), and by demonstrating that Singh's affirmativedefenses were without merit (see Jessabell Realty Corp. v Gonzales, 117 AD3d 908, 909[2014]; Fairmont Capital, LLCv Laniado, 116 AD3d 998 [2014]; Mendel Group, Inc. v Prince, 114 AD3d 732, 733 [2014]).However, the evidence submitted by Singh in opposition was sufficient to raise a triableissue of fact as to whether he was an occupant of the mortgaged premises at the time thisaction was commenced and, thus, whether the premises was an "owner-occupiedone-to-four family dwelling" subject to the RPAPL 1303 notice requirement. Sinceproper service of an RPAPL 1303 notice, where required, is a condition precedent to thecommencement of a foreclosure action, and noncompliance mandates dismissal of thecomplaint (see Aurora LoanServs., LLC v Weisblum, 85 AD3d 95, 98 [2011]; First Natl. Bank of Chicago vSilver, 73 AD3d 162, 165-166 [2010]), the Supreme Court should have deniedthose branches of the plaintiff's motion which were for summary judgment on thecomplaint and for an order of reference.
In light of our determination, Singh's appeal from so much of the order dated April17, 2014, as denied that branch of his motion which was for leave to renew has beenrendered academic. Eng, P.J., Chambers, Roman and Barros, JJ., concur.