Wells Fargo Bank, N.A. v. DeFeo

• Decision Date: 29 December 2021
• Docket Number: 2019–05449, 2019–05450,Index No. 607551/16
• Citation: 200 A.D.3d 1105,161 N.Y.S.3d 218
• Parties: WELLS FARGO BANK, N.A., etc., respondent, v. Vito DEFEO, etc., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1105

161 N.Y.S.3d 218

WELLS FARGO BANK, N.A., etc., respondent,

v.Vito DEFEO, etc., appellant, et al., defendants.

2019–05449, 2019–05450

Index No. 607551/16

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

Argued—May 27, 2021

December 29, 2021

John J. Caracciolo, East Northport, NY, for appellant.

Robertson, Anschutz, Schneid, Crane & Partners, PLLC (Greenberg Traurig, LLP, New York, NY [Brian Pantaleo ], of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Vito DeFeo appeals from two orders of the Supreme Court, Suffolk County (James C. Hudson, J.), both dated March 4, 2019. The first order, insofar as appealed from, denied that defendant's motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against him and granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike his answer with affirmative defenses and to treat his answer as a limited notice of appearance, and for an order of reference. The second order, insofar as appealed from, granted the same relief to the plaintiff and appointed a referee to ascertain and compute the amount due to the plaintiff.

ORDERED that the first order is modified, on the law, by deleting the provision thereof granting those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the defendant Vito DeFeo, to strike his answer with affirmative defenses and to treat his answer as a limited notice of appearance, and for an order of reference, and substituting therefor a provision denying those branches of the plaintiff's cross motion; as so modified, the first order is affirmed insofar as appealed from, without costs or disbursements, and so much of the second order as granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the defendant Vito DeFeo, to strike his answer with affirmative defenses and to treat his answer as a limited notice of appearance, and for an order of reference, and appointed a referee to ascertain and compute the amount due to the plaintiff is vacated; and it is further,

ORDERED that the appeal from the second order is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the first order.

In May 2016, the plaintiff commenced this action against, among others, the defendant Vito DeFeo (hereinafter the defendant) to foreclose a mortgage on certain property in East Northport. The defendant interposed an answer in which he asserted various affirmative defenses, and thereafter moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him. The plaintiff opposed the motion and cross-moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer with affirmative defenses and to treat his answer as a limited notice of appearance, and for an order of reference. By order dated March 4, 2019, the Supreme Court denied the defendant's motion and granted the plaintiff's cross motion. In a second order, also dated March 4, 2019, the court, inter alia, granted the same relief to the plaintiff and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. The defendant appeals.

RPAPL 1304(1) 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." "The statute further provides that the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 20, 98 N.Y.S.3d 273 ; see RPAPL 1304[2] ). Strict compliance with RPAPL 1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action (see Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 20, 98 N.Y.S.3d 273 ; Citimortgage, Inc. v. Banks, 155 A.D.3d...