Opinion
Index No. 651926/2023 Motion Seq. No. 002
01-03-2024
INTERAUDI BANK, Plaintiff, v. JALANBO FUNDING, LLC, SOMAR JALANBO, 367 BLEECKER OWNER LLC, BLEECKER STREET OWNER 4 LLC, BLEECKER STREET OWNER 5 LLC, BOARD OF MANAGERS OF MAISON PIERRE CONDOMINIUM, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY DEPARTMENT OF FINANCE, JOHN DOE #1 THROUGH JOHN DOE #5 Defendant.
Unpublished Opinion
MOTION DATE 07/14/2023
DECISION + ORDER ON MOTION
HON. LYLE E. FRANK PART JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 91 were read on this motion to/for DISMISS.
Background
This is a foreclosure action brought by INTERAUDI BANK ("plaintiff) against JALANBO FUNDING, LLC, SOMAR JALANBO, 367 BLEECKER OWNER LLC, BLEECKER STREET OWNER 4 LLC, BLEECKER STREET OWNER 5 LLC, BOARD OF MANAGERS OF MAISON PIERRE CONDOMINIUM, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY DEPARTMENT OF FINANCE, JOHN DOE #1 THROUGH JOHN DOE #5 ("defendants") for the property located at 367 Bleeker Street New York, NY. Defendants move to dismiss on the basis that plaintiff failed to send defendant a notice of default pursuant to the parties' contractual agreements and plaintiff failed to comply with RPAPL 1303.
Argument
i. Default Notice
Defendants argue the underlying mortgages expressly require that plaintiff deliver to defendants a thirty-day written notice and an opportunity to cure their non-monetary defaults before declaring an event of default and commencing a foreclosure proceeding. Defendants argue that because written notice and an opportunity to cure is a condition precedent, and such notice has not been given, plaintiff's claim must be dismissed. In opposition, plaintiff asserts they sent defendant said Notice of Default on November 30, 2021. In support of this assertion plaintiff provides a letter it alleges was sent to the defendants, and an affidavit from Kathryn Raynor asserting the letter was sent by certified mail.
The mortgage agreement at issue provides in relevant part,
Each of the following shall constitute an event of default (an "Event of Default") under this Mortgage: *** (b) default in the observance or performance of any of the of any, (sic) covenants or conditions herein (except for the covenants of the Mortgagor set forth in Sections 2.3, 2.14 and 2.15 hereof) or in any of the other Loan Documents for thirty (30) days after the giving by the Mortgagee to the Mortgagor of written notice thereof (or, (sic) with respect to a default which, in the reasonable judgment of the Mortgagee, shall be of such a nature that it cannot reasonably be cured or remedies within a thirty (30) day period…
The Court finds pursuant to the mortgage agreement, plaintiff was required to provide a notice of default to defendants prior to commencing a foreclosure proceeding. Moreover, it is plaintiff's burden to show such notice was provided to defendants. Plaintiff has failed to provide any proof of certified mail or any other evidence to support its contention it sent defendants such notice. While plaintiffs also argue that the parties' contractual agreement does not require such notice be sent in the first place, the Court finds this argument unavailing. The language provided above clearly indicates that a notice of default is a prerequisite to default.
ii. RPAPL 1303
Defendants further argue that plaintiff's claim must further be dismissed because plaintiff failed to strictly comply with the mandatory notice requirements under the Real Property Actions and Proceedings Law ("RPAPL"). Specifically, defendants allege RPAPL §1303 requires plaintiff deliver to each of the tenants of the four Residential Apartments notices advising such tenants of their rights in connection with a building in foreclosure and that plaintiffs have failed to establish such notice was provided.
In opposition, plaintiff asserts first, RPAPL §1303 is not applicable to the present action. Plaintiff asserts the notice requirements in RPAPL §1303 are only applicable to residential leases, and as this is a commercial lease, does not apply in this case. Second plaintiff argues that even if RPAPL §1303 does apply, plaintiff cured any alleged defect by providing "proper service of the summons and complaint and the RPAPL §1303 required notices" after defendants filed their motion to dismiss. In response, defendants argue RPAPL §1303 applies here because while the loan may be commercial, the property involved is residential. Moreover, defendants argue plaintiff has not provided sufficient proof to establish such notices were served, as their only basis for such assertion is the Urena affidavit, which does not attach the notice allegedly provided.
First, the Court finds plaintiff's argument that RPAPL §1303 is inapplicable, unavailing. In relevant part RPAPL §1303 provides, "The foreclosing party in a mortgage foreclosure action, involving residential real property…" The language "involving residential real property" is clear and applicable to the present action which plaintiff does not dispute is a residential building. Therefore, as a condition precedent to this foreclosure action, plaintiff must demonstrate compliance with the statutory notice requirements. See Wells Fargo Bank, N.A. v. Barrett, 33 Misc.3d 1207(A) (Sup. Ct. Queens Co. 2011); First Natl. Bank of Chicago v Silver, 73 A.D.3d 162 (2nd Dep't 2010). Furthermore, the Court finds plaintiff has failed to establish it provided such notice to tenants. An affidavit alleging compliance, without more, is insufficient to meet such burden. As such, the Court does not reach the remaining contentions of the parties. Accordingly, it is hereby
ORDERED that the matter is dismissed, and the Clerk of the Court shall enter judgment accordingly.