938 ST NICHOLAS AVENUE LENDER LLC v. [And A Third-Party Action] (2019)

Order, Supreme Court, New York County (Joan A. Madden, J.), entered December 26, 2017, which held in abeyance the determination of plaintiff's motion for summary judgment pending the outcome of a traverse hearing on whether notice of the foreclosure was served in accordance with RPAPL 1303, unanimously affirmed, with costs.

Although the traverse hearing has been held and the complaint dismissed, without prejudice, upon a finding that plaintiff failed to establish compliance with RPAPL 1303, this appeal is not moot, because the “change in circumstances [does not] prevent[ ] [this] [C]ourt from rendering a decision that would effectively determine an actual controversy” (see Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002];  cf. Wells Fargo Bank, N.A. v. Gore, 162 A.D.3d 437, 74 N.Y.S.3d 748 [1st Dept. 2018] [upon appeal from order, after traverse hearing, granting motion to vacate default judgment, Court dismissed appeal from order directing that traverse hearing be held] ).

The motion court correctly determined that, in opposition to plaintiff's prima facie showing of compliance with RPAPL 1303, the unit owners' sworn denials that they had ever seen foreclosure notices posted at the building were sufficient under the circumstances to rebut the presumption of proper service, warranting a traverse hearing (see Nationstar Mtge. LLC v. McCallum, 167 A.D.3d 523, 91 N.Y.S.3d 9 [1st Dept. 2018] ).  This case is factually distinguishable from cases involving personal service on an individual (see e.g. HSBC Bank USA, N.A. v. Whitter, 159 A.D.3d 942, 945, 74 N.Y.S.3d 285 [2d Dept. 2018] ).  Plaintiff is foreclosing against a cooperative corporation, with service of RPAPL 1303 notice on numerous building residents effectuated by allegedly posting the notice at entrances and exits to the building (see NYCTL 2012–A Trust v. Phillip, 145 A.D.3d 684, 685, 43 N.Y.S.3d 96 [2d Dept. 2016] ).