| Flagstar Bank, FSB v Damaro |
| 2016 NY Slip Op 08504 [145 AD3d 858] |
| December 21, 2016 |
| Appellate Division, Second Department |
[*1]
| Flagstar Bank, FSB, Respondent, v TonyaDamaro, Appellant, et al., Defendants. |
Scalzi & Nofi, PLLC, Hicksville, NY (Vincent J. Nofi of counsel), forappellant.
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Owen M. Robinson ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Tonya Damaro appeals from anorder and judgment of foreclosure and sale (one paper) of the Supreme Court, SuffolkCounty (Farneti, J.), dated June 10, 2014, which, upon an order of the same court datedFebruary 8, 2012, granting the plaintiff's unopposed motion, inter alia, for summaryjudgment on the complaint, to strike her answer, and for an order of reference, and uponan order of the same court dated June 6, 2013, denying her motion pursuant to CPLR5015 to vacate her default in opposing the plaintiff's motion and for summary judgmentdismissing the complaint insofar as asserted against her, inter alia, granted the plaintiff'smotion, among other things, to confirm the referee's report and for a judgment offoreclosure and sale, directed the sale of the subject property, and denied her crossmotion for leave to renew or reargue her prior motion.
Ordered that the appeal from so much of the order and judgment of foreclosure andsale dated June 10, 2014, as denied that branch of the cross motion of the defendantTonya Damaro which was for leave to reargue her prior motion is dismissed, as noappeal lies from an order denying reargument; and it is further,
Ordered that the order and judgment of foreclosure and sale is reversed insofar asreviewed, on the law and in the exercise of discretion, (1) that branch of the cross motionof the defendant Tonya Damaro which was for leave to renew her prior motion isgranted, and, upon renewal, the order dated June 6, 2013, denying the motion of thedefendant Tonya Damaro pursuant to CPLR 5015 to vacate her default in opposing theplaintiff's motion, inter alia, for summary judgment on the complaint, to strike heranswer, and for an order of reference, and for summary judgment dismissing thecomplaint insofar as asserted against her is vacated, and thereupon, the motion of thedefendant Tonya Damaro is granted, the order dated February 8, 2012, is vacated, and theplaintiff's motion, inter alia, for summary judgment on the complaint, to strike the answerof the defendant Tonya Damaro, and for an order of reference is denied, and (2) theplaintiff's motion, among other things, to confirm the referee's report and for a judgmentof foreclosure and sale is denied as academic; and it is further,
[*2] Ordered that one bill of costs is awarded to thedefendant Tonya Damaro.
The plaintiff, Flagstar Bank, FSB (hereinafter Flagstar), commenced this actionagainst the appellant, among others, to foreclose a mortgage on property owned by theappellant. By order dated February 8, 2012, the Supreme Court granted Flagstar'sunopposed motion, inter alia, for summary judgment on the complaint, to strike theappellant's answer, and for an order of reference. In an order dated June 6, 2013, thecourt denied the appellant's motion pursuant to CPLR 5015 to vacate her default inopposing Flagstar's motion, and for summary judgment dismissing the complaint insofaras asserted against her. The court subsequently entered an order and judgment dated June10, 2014, which, among other things, granted Flagstar's motion to confirm the referee'sreport, directed the sale of the subject property, and denied that branch of the appellant'scross motion which was for leave to renew her prior motion.
The Supreme Court improvidently exercised its discretion in denying that branch ofthe appellant's cross motion which was for leave to renew her prior motion to vacate herdefault in opposing the plaintiff's summary judgment motion and for summary judgmentdismissing the complaint insofar as asserted against her. A motion for leave to renewmust be based upon new facts not offered on the prior motion which would change theprior determination, and must contain a reasonable justification for the failure to presentsuch facts on the prior motion (see CPLR 2221 [e] [2]). Here, the appellant'srenewal motion was based upon an affidavit from the attorney who represented her at thetime of her default, which would have changed the prior determination by supplying areasonable excuse for her default, and which, she explained, could not have beenpresented on the prior motion because her former attorney had only agreed to supply theaffidavit after the prior motion was filed.
Upon renewal, the appellant's default in opposing Flagstar's motion, inter alia, forsummary judgment on the complaint should have been vacated. A party moving pursuantto CPLR 5015 (a) (1) to vacate a default in opposing a motion must demonstrate areasonable excuse for the default and a meritorious defense to the motion (see Shin v ITCI, Inc., 115AD3d 736, 736-737 [2014]; Lane v Smith, 84 AD3d 746, 747 [2011]). Here, theappellant established a reasonable excuse for her failure to oppose the plaintiff'ssummary judgment motion by providing a detailed and credible explanation of the lawoffice failure which led to her default (see CPLR 2005; U.S. Bank, N.A. v Bukobza,142 AD3d 1070 [2016]). Moreover, she demonstrated a potentially meritoriousdefense to the motion, inter alia, based upon the plaintiff's failure to comply with RPAPL1304.
Upon vacating the appellant's default, the Supreme Court should have denied theplaintiff's motion for summary judgment on the complaint, to strike the appellant'sanswer, and for an order of reference, and granted that branch of the appellant's motionwhich was for summary judgment dismissing the complaint insofar as asserted againsther. "[P]roper service of [a] RPAPL 1304 notice containing the statutorily-mandatedcontent is a condition precedent to the commencement of the foreclosure action" (Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95, 103 [2011]). "[T]he plaintiff has the burden ofestablishing satisfaction of this condition" (id. at 106).
Here, Flagstar failed to meet its initial burden of demonstrating the absence ofmaterial issues as to its strict compliance with RPAPL 1304 (see Deutsche Bank Natl. Trust Co.v Cunningham, 142 AD3d 634, 636 [2016]; Hudson City Sav. Bank v DePasquale, 113 AD3d 595, 596[2014]; Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 105-106).Specifically, RPAPL 1304 requires that the notice sent to the borrower recite the date bywhich the borrower can cure his or her default (see RPAPL 1304). The notice inthis case, sent on August 25, 2010, advised the appellant that she had until August 23,2010 to cure her default. Therefore, the RPAPL 1304 notice was defective on its face,requiring denial of Flagstar's motion for summary judgment on the complaint (seeHudson City Sav. Bank v DePasquale, 113 AD3d at 596; see also Aurora LoanServs., LLC v Weisblum, 85 AD3d at 105-106). Based on the same evidence, theappellant's motion for summary judgment dismissing the complaint insofar as assertedagainst her should have been granted (see Hudson City Sav. Bank v DePasquale,113 AD3d at 596; Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 108).
In light of our determination, we need not reach the appellant's remaining contention.Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.