BAYVIEW LOAN SERVICING LLC v. MOSBACHER (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Rockland County (Paul I. Marx, J.), dated February 1, 2023.  The order, after a nonjury trial, directed dismissal of the complaint.

ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

In 2009, the plaintiff's predecessor in interest commenced the instant action against the defendants to foreclose a mortgage on certain real property.  In 2014, the plaintiff's predecessor in interest moved, inter alia, for summary judgment on the complaint.  In opposition, the defendants argued that compliance with RPAPL 1304 was not established.  In an order dated December 17, 2015, the Supreme Court granted the motion.  A judgment of foreclosure and sale was entered on August 11, 2016.  The defendants appealed.  In a decision and order of this Court dated February 24, 2021, the judgment of foreclosure and sale was reversed based on the failure to establish strict compliance with RPAPL 1304 (see Bayview Loan Servicing, LLC v. Mosbacher, 191 A.D.3d 936, 937, 139 N.Y.S.3d 553).

Following a subsequent nonjury trial, the Supreme Court determined, among other things, that there was no evidence that a RPAPL 1304 notice was mailed to the defendants.  In an order dated February 1, 2023, the Supreme Court directed dismissal of the complaint.  The plaintiff appeals.

The plaintiff's contention that the Supreme Court applied RPAPL 1304 retroactively is without merit.  The plaintiff obtained a favorable judgment when it argued that it had complied with RPAPL 1304.  Only after that judgment was reversed did the plaintiff change course, arguing at the nonjury trial that RPAPL 1304 was inapplicable.  Therefore, the court properly determined that the plaintiff was judicially estopped from inconsistently arguing that RPAPL 1304 did not apply (see Cruz v. Bank of N.Y. Mellon, 218 A.D.3d 638, 640, 192 N.Y.S.3d 634).  On appeal, the plaintiff does not contend that it established compliance with RPAPL 1304 at trial.

Accordingly, the Supreme Court properly directed dismissal of the complaint.

The plaintiff's remaining contention is without merit.

Appeal from an order of the Supreme Court, Rockland County, dated February 1, 2023.  Motion by the respondents to dismiss the appeal, inter alia, on the ground that it has been rendered academic or, in the alternative, to strike stated portions of the record and the appellant's brief on the ground that they contain and refer to matter dehors the record.  By decision and order on motion of this Court dated August 7, 2024, those branches of the motion were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the branch of the motion which is to strike stated portions of the record and the appellant's brief on the ground that they contain and refer to matter dehors the record is granted to the extent that pages 397–446 of the record are stricken and have not been considered in the determination of this appeal, and that branch of the motion is otherwise denied;  and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal is denied.

GENOVESI, J.P., WAN, VENTURA and QUIRK, JJ., concur.