| Eastern Sav. Bank, FSB v Tromba |
| 2017 NY Slip Op 01535 [148 AD3d 675] |
| March 1, 2017 |
| Appellate Division, Second Department |
[*1]
| Eastern Savings Bank, FSB, Respondent, v Giuseppe L.Tromba, Also Known as Guiseppe Tromba, Appellant, et al.,Defendants. |
The Ranalli Law Group, PLLC, Hauppuge, NY (Ernest E. Ranalli of counsel), forappellant.
Kriss & Feuerstein LLP, New York, NY (Jennifer Alec Tolston, Jerold C. Feuerstein,Dwight Yellen, and Nicole L. Milone of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Giuseppe L. Tromba, also known asGuiseppe Tromba, appeals, as limited by his brief, from so much of an order of the SupremeCourt, Suffolk County (Garguilo, J.), dated July 10, 2014, as denied those branches of his motionwhich were pursuant to CPLR 5015 (a) (2) and (3) to vacate a judgment of foreclosure and saleof the same court entered April 15, 2011, upon his failure to answer the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
Giuseppe L. Tromba, also known as Guiseppe Tromba (hereinafter the defendant), executeda note in favor of the plaintiff, which was secured by a mortgage on residential property in MillerPlace, Suffolk County. In June 2008, after the defendant defaulted on his obligations under thenote, the plaintiff commenced the instant action to foreclose the mortgage. The defendant and hiswife, the defendant Ellen Tromba (hereinafter together the defendants), failed to answer thecomplaint, and the Supreme Court granted the plaintiff's motion for leave to enter a judgment offoreclosure and sale. Thereafter, the defendant moved, inter alia, pursuant to CPLR 5015 (a) (2)and (3) to vacate the judgment of foreclosure and sale on the ground that the plaintiff failed toserve him with a notice pursuant to RPAPL 1303 that complied with the statute. The court deniedthose branches of the motion, and the defendant appeals.
RPAPL 1303 requires that a notice titled "Help for Homeowners in Foreclosure" be deliveredto the mortgagor along with the summons and complaint in residential foreclosure actionsinvolving owner-occupied, one-to-four family dwellings (Prompt Mtge. Providers of N. Am., LLC v Singh, 132 AD3d 833,833 [2015]; see RPAPL 1303 [1], [2]). The statute mandates that the notice be in bold,14-point type and printed on colored paper that is other than the color of the summons andcomplaint, and that the title of the notice be in bold, 20-point type (see RPAPL 1303 [2]).Proper service of an RPAPL 1303 notice is a condition precedent to the commencement of aforeclosure action, and noncompliance mandates dismissal of the complaint (see PromptMtge. Providers of N. Am., LLC v Singh, 132 AD3d at 834; Aurora Loan Servs., LLC v Weisblum,85 AD3d 95, 98 [2011]; First Natl.Bank of Chicago v Silver, 73 AD3d 162, 165-166 [2010]). A defendant mortgagor canraise the [*2]mortgagee's failure to comply with the statute at anytime (see First Natl. Bank of Chicago v Silver, 73 AD3d at 163).
Here, in support of his motion, the defendant asserted that he had recently discovered that theRPAPL 1303 notice that was attached to the copy of the summons and complaint that was filedwith the Suffolk County Clerk at the commencement of the action was not on colored paper, anddid not use a type size and style that complied with the requirements of the statute. However, inopposition to the motion, the plaintiff submitted an affidavit from a paralegal supervisor in theoffice of its attorneys, who stated that, based on his review of the attorneys' files, the RPAPL1303 notice that was served on the defendant was on green paper, and used a type size and stylethat complied with the requirements of the statute. The plaintiff's showing was sufficient toestablish that the notice that was served on the defendant complied with the statute. The SupremeCourt therefore correctly concluded that the defendant failed to establish that the judgment offoreclosure and sale should be vacated based on newly discovered evidence (see CPLR5015 [a] [2]; IMC Mtge. Co. vVetere, 142 AD3d 954, 955 [2016]; Matter of Chatham Towers, Inc. v Bloomberg, 39 AD3d 308, 309[2007]; Federated Conservationists ofWestchester County v County of Westchester, 4 AD3d 326 [2004]), or based on fraud,misrepresentation, or other misconduct by the plaintiff with respect to the RPAPL 1303 notice(see CPLR 5015 [a] [3]).
Accordingly, the Supreme Court properly denied those branches of the defendant's motionwhich were pursuant to CPLR 5015 (a) (2) and (3) to vacate the judgment of foreclosure andsale. Dillon, J.P., Miller, Hinds-Radix and Connolly, JJ., concur.