Opinion
9589 Index 380676/13
06-11-2019
WELLS FARGO BANK, N.A., Plaintiff–Respondent, v. Reyes MERINO, Defendant–Appellant, City Register of The City of New York, et al., Defendants.
Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellant. Reed Smith LLP, New York (Andrew B. Messite of counsel), for respondent.
Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellant.
Reed Smith LLP, New York (Andrew B. Messite of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Gesmer, Kern, Singh, JJ.
Judgment, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about April 26, 2018, which granted plaintiff's motion for judgment of foreclosure and sale, unanimously reversed, on the law and the facts, with costs, the judgment vacated, plaintiff's motion denied, and defendant Reyes Merino's cross motion to dismiss the complaint granted.
It was an improvident exercise of discretion to apply the law of the case doctrine and decline to reconsider whether plaintiff established that RPAPL 1304 notices were properly and timely sent as a condition precedent to the commencement of its foreclosure action ( Aurora Loan Servs., LLC v. Weisblum , 85 A.D.3d 95, 106, 923 N.Y.S.2d 609 [2d Dept. 2011] ; see Emigrant Mtg. Co. v. Lifshitz , 143 A.D.3d 755, 38 N.Y.S.3d 822 [2d Dept. 2016] ). While defendant, who was initially pro se, raised the defense of plaintiff's noncompliance with the strict requirements of RPAPL 1304 90–day pre-foreclosure notices in her answer, she did not raise it in her opposition to plaintiff's motion for summary judgment, which was subsequently granted. This does not preclude her, however, from raising plaintiff's noncompliance prior to entry of judgment of foreclosure and sale ( Emigrant , 143 A.D.3d at 755–756, 38 N.Y.S.3d 822 ).
Plaintiff failed to establish strict compliance with RPAPL 1304, a condition precedent to the commencement of a foreclosure action (see HSBC Bank USA v. Rice , 155 A.D.3d 443, 63 N.Y.S.3d 382 [1st Dept. 2017] ). The affidavits submitted by plaintiff failed to demonstrate a familiarity with plaintiff's mailing practices and procedures ( HSBC Bank , 155 A.D.3d at 444, 63 N.Y.S.3d 382 ), and they did not suffice as affidavits of service.