NATIONSTAR MORTGAGE LLC v. DIMURA (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Orange County (Maria S. Vazquez–Doles, J.), dated August 5, 2024.  The order denied the plaintiff's motion, inter alia, to confirm a referee's report and for a judgment of foreclosure and sale and granted the cross-motion of the defendants Michael Dimura and Jacqueline Dimura (1) for leave to renew with respect to an order of the same court (Catherine M. Bartlett, J.) dated October 21, 2020, granting the plaintiff's unopposed motion, in effect, to settle a proposed order and judgment of foreclosure and possession of the subject property and, upon renewal, vacated the order dated October 21, 2020, and (2) pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for failure to comply with RPAPL 1304.

ORDERED that the order dated August 5, 2024, is affirmed, with costs.

In March 2009, the plaintiff's predecessor in interest commenced this action against the defendants Michael Dimura and Jacqueline Dimura (hereinafter together the defendants), among others, to foreclose a mortgage encumbering certain real property located in Orange County.  The defendants interposed an answer in which they asserted various affirmative defenses, including failure to comply with RPAPL 1304.  In an order dated October 17, 2018, the Supreme Court granted the plaintiff's motion pursuant to CPLR 2104 to enforce an alleged settlement agreement and directed the plaintiff to “[s]ettle judgment on notice.”  The plaintiff subsequently moved, in effect, to settle a proposed order and judgment of foreclosure and possession of the property.  In an order dated October 21, 2020 (hereinafter the October 2020 order), the court granted the plaintiff's unopposed motion.

In May 2024, the plaintiff moved, inter alia, to confirm a referee's report and for a judgment of foreclosure and sale.  The defendants cross-moved for leave to renew with respect to the October 2020 order and pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for failure to comply with RPAPL 1304.  In an affirmation in support of the cross-motion, the defendants' counsel asserted that neither he nor the defendants' former attorney were served with notice of the plaintiff's prior motion that resulted in the October 2020 order.  In an order dated August 5, 2024, the Supreme Court denied the plaintiff's motion, granted that branch of the defendants' cross-motion which was for leave to renew and, upon renewal, vacated the October 2020 order, and granted that branch of the defendants' cross-motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for failure to comply with RPAPL 1304.  The plaintiff appeals.

“A motion for leave to renew ‘shall be based upon new facts not offered on the prior motion that would change the prior determination’ and ‘shall contain reasonable justification for the failure to present such facts on the prior motion,’ or ‘shall demonstrate that there has been a change in the law that would change the prior determination’ ” (U.S. Bank N.A. v. Cuencas, 233 A.D.3d 913, 915, 225 N.Y.S.3d 264, quoting CPLR 2221[e][2], [3];  see HSBC Bank USA, N.A. v. Krebs, 219 A.D.3d 1417, 1419, 197 N.Y.S.3d 90).

“The proper procedure to cure a default in opposing a motion is to move pursuant to CPLR 5015(a) to vacate the default, and, if necessary, to appeal from any denial of that motion” (BSD 253, LLC v. Wilmington Sav. Fund Socy., FSB, 219 A.D.3d 900, 901, 194 N.Y.S.3d 328;  see U.S. Bank, N.A. v. Blagman, 188 A.D.3d 1284, 1285, 136 N.Y.S.3d 393).

Here, since the October 2020 order was entered upon the defendants' default in opposing the plaintiff's prior motion, the Supreme Court should have treated that branch of the defendants' cross-motion which was for leave to renew as one seeking to vacate the default, and we construe it as such (see Ernest v. St. Juste, 240 A.D.3d 667, 668, 238 N.Y.S.3d 504;  U.S. Bank, N.A. v. Blagman, 188 A.D.3d at 1285, 136 N.Y.S.3d 393).  CPLR 5015(a)(4) provides that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person ․ upon the ground of ․ lack of jurisdiction to render the judgment or order” (see Braylovskaya v. Skazka Rest., 231 A.D.3d 700, 701, 217 N.Y.S.3d 654).

CPLR 2211 provides that “[a] motion on notice is made when a notice of the motion or an order to show cause is served.”  Additionally, CPLR 2103(b) provides, in relevant part, that “papers to be served upon a party in a pending action shall be served upon the party's attorney,” and such service may be made by mailing the papers to the attorney “at the address designated by that attorney for that purpose” (id. § 2103[b][2] ).  “ ‘[I]mproper service of a motion provides a complete excuse for default on a motion and deprives the court of jurisdiction to entertain the motion․  [T]he failure to provide a defendant with proper notice of a motion renders the resulting order and judgment entered upon that order nullities, warranting vacatur pursuant to CPLR 5015(a)(4)’ ” (U.S. Bank N.A. v. Nakash, 195 A.D.3d 651, 654, 151 N.Y.S.3d 50, quoting Paulus v. Christopher Vacirca, Inc., 128 A.D.3d 116, 124–125, 6 N.Y.S.3d 572;  see U.S. Bank Trust, N.A. v. Johnson, 201 A.D.3d 841, 842, 157 N.Y.S.3d 393).

Here, the defendants established, prima facie, that the plaintiff's prior motion was improperly served by submitting evidence that the plaintiff mailed the motion papers to an incorrect address for the defendants' then counsel, resulting in the defendants' lack of notice of the plaintiff's prior motion (see Wilmington Sav. Fund Socy., FSB v. Sheikh, 183 A.D.3d 783, 784–785, 121 N.Y.S.3d 661;  Wells Fargo Bank, N.A. v. Whitelock, 154 A.D.3d 906, 907, 62 N.Y.S.3d 458).  In opposition, the plaintiff failed to raise a question of fact.  The plaintiff's argument that nonservice was not established because the defendants' former counsel may have nevertheless received the motion papers is raised for the first time on appeal (see Wells Fargo Bank v. Islam, 174 A.D.3d 670, 671–672, 106 N.Y.S.3d 76) and, in any event, without merit (see Wilmington Sav. Fund Socy., FSB v. Sheikh, 183 A.D.3d at 784–785, 121 N.Y.S.3d 661;  MTGLQ Invs., L.P. v. White, 179 A.D.3d 790, 792, 117 N.Y.S.3d 102).  Accordingly, the Supreme Court properly vacated the October 2020 order.

“RPAPL 1304 requires that, at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer give notice to the borrower.  The statute provides 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” (Wells Fargo Bank, N.A. v. Davidson, 202 A.D.3d 880, 881, 162 N.Y.S.3d 451;  see RPAPL 1304[2] ).  “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;  see Wells Fargo Bank, N.A. v. Welz, 239 A.D.3d 693, 696, 237 N.Y.S.3d 208).  “[T]he mailing of a 90–day notice jointly addressed to two or more borrowers in a single envelope is not sufficient to satisfy the requirements of RPAPL 1304, and ․ the plaintiff must separately mail a 90–day notice to each borrower as a condition precedent to commencing the foreclosure action” (Wells Fargo Bank, N.A. v. Yapkowitz, 199 A.D.3d 126, 134, 155 N.Y.S.3d 163;  see U.S. Bank N.A. v. Zakarin, 238 A.D.3d 1194, 1195, 237 N.Y.S.3d 65).

Here, in support of that branch of their cross-motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for noncompliance with RPAPL 1304, the defendants submitted documents previously submitted by the plaintiff in support of its prior motion (see U.S. Bank N.A. v. Zakarin, 238 A.D.3d at 1195, 237 N.Y.S.3d 65), which included a copy of the 90–day notice jointly addressed to both defendants (see HSBC Bank USA, N.A. v. Schneider, 216 A.D.3d 1148, 1149, 191 N.Y.S.3d 68;  Wells Fargo Bank, N.A. v. Yapkowitz, 199 A.D.3d at 134, 155 N.Y.S.3d 163).  In opposition, the plaintiff failed to raise a question of fact.  Accordingly, the Supreme Court properly granted that branch of the defendants' cross-motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for noncompliance with RPAPL 1304.

As a result, contrary to the plaintiff's contention, the Supreme Court properly denied the plaintiff's motion, inter alia, to confirm a referee's report and for a judgment of foreclosure and sale (see Bank of N.Y. Mellon v. Levinson, 230 A.D.3d 548, 551, 218 N.Y.S.3d 352).

CONNOLLY, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.