| Bayview Loan Servicing, LLC v Akande |
| 2017 NY Slip Op 06951 [154 AD3d 694] |
| October 4, 2017 |
| Appellate Division, Second Department |
[*1]
| Bayview Loan Servicing, LLC, Respondent, v EzekielAkande, Appellant, et al., Defendants. |
Law Office of Carl E. Person, New York, NY (Giancarlo Malinconico of counsel), forappellant.
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Robert H. King and Daniel Frisaof counsel), for respondent.
Appeal from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), datedSeptember 10, 2015. The order, insofar as appealed from, granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted against thedefendant Ezekiel Akande and for an order of reference, and denied that defendant's crossmotion, inter alia, for summary judgment dismissing the complaint insofar as asserted againsthim.
Ordered that the order is affirmed insofar as appealed from, with costs.
Ezekiel Akande (hereinafter the defendant) executed a note dated May 18, 2006, in the sumof $541,800, which was secured by a mortgage on residential property located in Brooklyn. InOctober 2009, Bayview Loan Servicing, LLC (hereinafter the plaintiff), a successor in interest tothe lender, commenced this action to foreclose the mortgage against the defendant, among others.The plaintiff moved, inter alia, for summary judgment on the complaint insofar as assertedagainst the defendant and for an order of reference. The defendant cross-moved, among othersthings, for summary judgment dismissing the complaint insofar as asserted against him on theground that the plaintiff failed to demonstrate its compliance with RPAPL 1304. In an orderdated September 10, 2015, the Supreme Court granted the plaintiff's motion and denied thedefendant's cross motion. The defendant appeals.
RPAPL 1304 provides that, "with regard to a home loan, at least ninety days before a lender,an assignee or a mortgage loan servicer commences legal action against the borrower. . . including mortgage foreclosure, such lender, assignee or mortgage loan servicershall give notice to the borrower" (RPAPL 1304 [1]). The statute sets forth the requirements forthe content of such notice (see id.), and provides that such notice must be sent byregistered or certified mail and by first-class mail to the last known address of the borrower(see RPAPL 1304 [2]). "[P]roper service of RPAPL 1304 notice on the borrower orborrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiffhas the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011];see Citibank, N.A. v Wood, 150AD3d 813, [*2]814 [2017]; Flagstar Bank, FSB v Damaro, 145AD3d 858, 860 [2016]; FlushingSav. Bank v Latham, 139 AD3d 663, 665 [2016]; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 911[2013]).
Here, the plaintiff's submissions in support of its motion demonstrated, prima facie, that thesubject loan was not a "home loan" within the meaning of RPAPL 1304, and that it was thereforenot required to comply with the statutory notice provisions (see Citimortgage, Inc. v Simon, 137 AD3d 1190, 1192 [2016]; Fairmont Capital, LLC v Laniado, 116AD3d 998, 998-999 [2014]; MendelGroup, Inc. v Prince, 114 AD3d 732, 733 [2014]). The plaintiff further established itsprima facie entitlement to judgment as a matter of law by producing copies of the unpaid note,the mortgage, and evidence of the defendant's default (see Citimortgage, Inc. v Simon,137 AD3d at 1192; Fairmont Capital, LLC v Laniado, 116 AD3d at 998). In opposition tothe plaintiff's prima facie showing, the defendant failed to raise a triable issue of fact.
The parties' remaining contentions need not be reached in light of our determination.
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against the defendant andfor an order of reference, and properly denied the defendant's cross motion, inter alia, forsummary judgment dismissing the complaint insofar as asserted against him. Rivera, J.P., Miller,Maltese and Connolly, JJ., concur.