CAPITAL ONE v. HUNTER (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), entered October 26, 2022.  The order denied the plaintiff's motion, inter alia, for summary judgment on the amended complaint insofar as asserted against the defendants William I. Hunter, also known as William Hunter, and Karen Hunter and, in effect, searched the record and awarded summary judgment to the defendants William I. Hunter, also known as William Hunter, and Karen Hunter dismissing the amended complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

In April 2013, the plaintiff commenced this action against William I. Hunter, also known as William Hunter, and Karen Hunter (hereinafter together the defendants), among others, to foreclose a mortgage on certain residential property located in Jericho.  The defendants interposed an answer, asserting several affirmative defenses, including failure to comply with RPAPL 1304.  Thereafter, the plaintiff moved, inter alia, for summary judgment on the amended complaint insofar as asserted against the defendants, to strike their answer and dismiss their affirmative defenses, and for an order of reference.  The defendants opposed the motion, contending, among other things, that the plaintiff failed to strictly comply with RPAPL 1304.  In an order entered October 26, 2022, the Supreme Court denied the plaintiff's motion and, in effect, searched the record and awarded summary judgment to the defendants dismissing the amended complaint insofar as asserted against them.  The plaintiff appeals.  We affirm.

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.”  “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” (Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 20, 98 N.Y.S.3d 273).  “RPAPL 1304(2) states that [t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice” (Deutsche Bank Natl. Trust Co. v. Hennessy, 218 A.D.3d 740, 741, 192 N.Y.S.3d 682 [internal quotation marks omitted]).

Here, the Supreme Court properly denied the plaintiff's motion, inter alia, for summary judgment on the amended complaint insofar as asserted against the defendants.  The defendants are both borrowers for purposes of RPAPL 1304 and, thus, were each entitled to RPAPL 1304 notice (see Deutsche Bank Natl. Trust Co. v. Hennessy, 218 A.D.3d at 741, 192 N.Y.S.3d 682).  However, although both defendants were entitled to RPAPL 1304 notice, the plaintiff failed to establish that it sent a 90–day notice individually addressed to each defendant in separate envelopes, as required by the statute (see Deutsche Bank Natl. Trust Co. v. Zatari, 220 A.D.3d 1151, 1153, 199 N.Y.S.3d 261;  U.S. Bank N.A. v. Reddy, 220 A.D.3d 967, 971, 199 N.Y.S.3d 123;  Deutsche Bank Natl. Trust Co. v. Hennessy, 218 A.D.3d at 741, 192 N.Y.S.3d 682;  U.S. Bank N.A. v. Maioriello, 207 A.D.3d 428, 428, 170 N.Y.S.3d 879;  Wells Fargo Bank, N.A. v. Yapkowitz, 199 A.D.3d 126, 136, 155 N.Y.S.3d 163).  Rather, the record shows that one notice was improperly addressed to both defendants.

For the same reason, the defendants were entitled to summary judgment dismissing the amended complaint insofar as asserted against them (see U.S. Bank N.A. v. Reddy, 220 A.D.3d at 972, 199 N.Y.S.3d 123).

BARROS, J.P., MILLER, FORD and DOWLING, JJ., concur.