WILMINGTON SAVINGS FUND SOCIETY FSB v. FISCHMAN (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Nina Fischman and Aaron Fischman appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (David P. Sullivan, J.), entered March 17, 2023.  The order and judgment of foreclosure and sale, upon an order of the same court (Thomas A. Adams, J.) entered January 22, 2020, granting those branches of the plaintiff's renewed motion which were for summary judgment on the amended complaint insofar as asserted against those defendants, to strike those defendants' affirmative defense alleging failure to comply with RPAPL 1304, and for an order of reference, inter alia, confirmed a referee's report and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, with costs, those branches of the plaintiff's renewed motion which were for summary judgment on the amended complaint insofar as asserted against the defendants Nina Fischman and Aaron Fischman, to strike those defendants' affirmative defense alleging failure to comply with RPAPL 1304, and for an order of reference are denied, and the order entered January 22, 2020, is modified accordingly.

In August 2017, the plaintiff commenced this action against the defendants Nina Fischman and Aaron Fischman (hereinafter together the defendants), among others, to foreclose a mortgage on certain real property located in Woodmere.  The defendants served an answer raising various affirmative defenses, including the plaintiff's failure to comply with RPAPL 1304.  After the Supreme Court denied with leave to renew the plaintiff's motion, inter alia, for summary judgment on the amended complaint insofar as asserted against the defendants, to strike the defendants' affirmative defense alleging failure to comply with RPAPL 1304, and for an order of reference, the plaintiff moved for leave to renew the prior motion.  In an order entered January 22, 2020, the Supreme Court, among other things, granted those branches of the renewed motion.  In an order and judgment of foreclosure and sale entered March 17, 2023, the Supreme Court, inter alia, confirmed a referee's report and directed the sale of the property.  The defendants appeal.

The defendants correctly contend that the RPAPL 1304 notice was defective.  “Proper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a residential foreclosure action” (HSBC Bank USA, N.A. v Schneps, 210 AD3d 748, 749 [internal quotation marks omitted];  see Capital One, N.A. v Hunter, 236 AD3d 980, 981).  “In a residential foreclosure action, a plaintiff moving for summary judgment must tender sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304” (Wilmington Sav. Fund Socy., FSB v Hershkowitz, 189 AD3d 1126, 1128 [internal quotation marks omitted];  see JP Morgan Chase Bank, N.A. v Kutch, 142 AD3d 536, 537).

Here, the plaintiff's RPAPL 1304 notice, dated July 15, 2016, contained the statutory language that was in effect at the time of the notice.  However, RPAPL 1304 was amended effective December 20, 2016, and the amendment changed the language that the statute required the notice to contain (see L 2016, ch 73, part Q, § 6 [eff Dec. 20, 2016] ).  Thus, the plaintiff's July 15, 2016 RPAPL 1304 notice did not satisfy the condition precedent to litigation for this action commenced in August 2017, after the effective date of the amendment (see Wilmington Sav. Fund Socy., FSB v Scarso, 241 AD3d 859, 861;  U.S. Bank N.A. v Chrismas–Beck, 219 AD3d 534, 538).  Although this issue is raised for the first time on appeal, it may be reached as it involves a pure question of law that appears on the face of the record and could not have been avoided if brought to the court's attention at the proper juncture (see U.S. Bank N.A. v Reddy, 220 AD3d 967, 971–972).  Accordingly, those branches of the plaintiff's renewed motion which were for summary judgment on the amended complaint insofar as asserted against the defendants, to strike the defendants' affirmative defense alleging failure to comply with RPAPL 1304, and for an order of reference should be denied.

The defendants' remaining contentions need not be reached in light of our determination.

LASALLE, P.J., CONNOLLY, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.