Deutsche Bank Nat'l Trust Co. v. Spanos

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS
• Citation: Deutsche Bank Nat'l Trust Co. v. Spanos, 102 A.D.3d 909, 961 N.Y.S.2d 200, 2013 N.Y. Slip Op. 451 (N.Y. App. Div. 2013)
• Decision Date: 30 January 2013
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Demetres SPANOS, et al., defendants, Isadora Sidroula Spanos, appellant.

102 A.D.3d 909

961 N.Y.S.2d 200

2013 N.Y. Slip Op. 00451

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v. Demetres SPANOS, et al., defendants,Isadora Sidroula Spanos, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 30, 2013.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Thomas M. Smith of counsel), for appellant.

Hinshaw & Culbertson LLP, New York, N.Y. (Schuyler B. Kraus and Annmarie D'Amour of counsel), for respondent.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In an action to foreclose a mortgage, the defendant Isadora Sidroula Spanos appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated August 29, 2011, which granted the plaintiff's application, in effect, to compel her to accept its reply to her counterclaim, and granted the plaintiff's motion for summary judgment dismissing her affirmative defenses and counterclaims, and denied her cross motion, inter alia, for leave to enter judgment against the plaintiff on its default in replying to her counterclaims and for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as granted the plaintiff's application, in effect, to compel the defendant Isadora Sidroula Spanos to accept its reply to her counterclaim is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted ( seeCPLR 5701[c] ); and it is further,

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff's motion which were for summary judgment dismissing the second and third affirmative defenses asserted by the defendant Isadora Sidroula Spanos, and substituting therefor a provision denying those branches of the plaintiff's motion; as so modified, the order is affirmed, without costs or disbursements.

The Supreme Court erred in granting that branch of the plaintiff's motion which was for summary judgment dismissing the second affirmative defense asserted by the defendant Isadora Sidroula Spanos (hereinafter the appellant). In her second affirmative defense, the appellant alleged, inter alia, that the plaintiff failed to comply with the mortgage foreclosure notice requirements mandated by RPAPL 1304. RPAPL 1304 provides that, “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 servicer shall give notice to the borrower in at least fourteen-point type” (RPAPL 1304[1] ). RPAPL 1304 sets forth the requirements for the content of such notice ( seeRPAPL 1304[1] ), and further provides that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower ( seeRPAPL 1304[2] ).

RPAPL 1304 currently applies to any “home loan,” as defined in RPAPL 1304(5)(a). When the statute was first enacted, it applied only to “high cost,” “subprime,” and “non-traditional” home loans ( Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 104, 923 N.Y.S.2d 609 [citing L. 2008, ch. 472, § 2] ). In 2009, the Legislature amended the statute, “effective January 14, 2010, to take its current form, by deleting all references to high-cost, subprime, and non-traditional home loans” ( Aurora Loan Servs., LLC, 85 A.D.3d at 105, 923 N.Y.S.2d 609 [citing L. 2009, ch. 507, § 1–a] ). Since the instant action was commenced on March 26, 2010, the 90–day notice requirement set forth in the statute is applicable.

“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” ( Aurora Loan Servs., LLC, 85 A.D.3d at 106, 923 N.Y.S.2d 609). Here, the plaintiff failed to submit an affidavit of service evincing that it properly served the appellant pursuant to RPAPL 1304 ( see id.). Thus, it failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law in connection with this affirmative defense ( see Aurora Loan Servs., LLC, 85 A.D.3d at 106, 923 N.Y.S.2d 609). Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment dismissing the second affirmative defense alleging that the plaintiff failed to comply with RPAPL 1304 without regard to the sufficiency of the appellant's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

However, the appellant's contention that the Supreme Court should have granted that branch of her cross motion which was for summary judgment dismissing the complaint insofar as asserted against her based on the plaintiff's failure to comply with the notice requirements set forth in RPAPL 1304 is without merit. The appellant failed to meet her burden of establishing, prima facie, that the plaintiff did not properly serve her with notice pursuant to RPAPL 1304. In support of her cross motion, the appellant's counsel merely argued that the plaintiff failed to submit any proof that such notice was served. However, as the moving party, the appellant needed to affirmatively demonstrate that the pre-condition was not satisfied. Indeed, “[a] party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense” ( Velasquez v. Gomez, 44 A.D.3d 649, 650–651, 843 N.Y.S.2d 368, quoting George Larkin Trucking Co. v. Lisbon Tire Mart, 185 A.D.2d 614, 615, 585 N.Y.S.2d 894;see Fields v. Village of Sag Harbor, 92 A.D.3d 718, 938 N.Y.S.2d 611;Calderone v. Town of Cortlandt, 15 A.D.3d 602, 790 N.Y.S.2d 687). The plaintiff alleged in the complaint that it complied with the provision of RPAPL 1304. Having failed to submit evidence which disproved this allegation, the appellant failed to satisfy her initial...