Opinion
No. 2023-00466 Index No. 67463/19
05-29-2024
U.S. Bank Trust, N.A., etc., respondent, v. Michael Longo, etc., appellant, et al., defendants.
Law Office of James Marsico, PLLC (Joseph E. Ruyack III, Middletown, NY, of counsel), for appellant. Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent.
Law Office of James Marsico, PLLC (Joseph E. Ruyack III, Middletown, NY, of counsel), for appellant.
Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent.
ANGELA G. IANNACCI, J.P. JOSEPH J. MALTESE HELEN VOUTSINAS LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Michael Longo appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated September 14, 2022. The order and judgment of foreclosure and sale, insofar as appealed from, granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Michael Longo (hereinafter the defendant). The defendant interposed an answer asserting various affirmative defenses, including that the plaintiff failed to comply with RPAPL 1304 and the notice of default provision of the mortgage agreement. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against him. In an order dated April 19, 2022, the Supreme Court granted the plaintiff's motion and denied the defendant's cross-motion.
Thereafter, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. The defendant opposed the motion, contending that the plaintiff failed to establish that it complied with RPAPL 1304 and the notice of default provision contained in paragraph 22 of the mortgage agreement. In an order and judgment of foreclosure and sale dated September 14, 2022, the Supreme Court, among other things, granted the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property. The defendant appeals.
"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). RPAPL 1304(1) provides that "with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower... including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." "Home loan" is defined as a loan, inter alia, that is secured by a mortgage on real estate "which is or will be occupied by the borrower as the borrower's principal dwelling" (id. § 1304[6][a][1][iii]).
Here, the Supreme Court considered and decided the issues of the plaintiff's compliance with RPAPL 1304 and the notice of default provision of the mortgage agreement in the plaintiff's favor on the plaintiff's motion for summary judgment (see Bank of N.Y. Mellon v Singh, 205 A.D.3d 866). The doctrine of law of the case precluded the court from reconsidering those issues in opposition to the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale (see U.S. Bank N.A. v Ramanababu, 202 A.D.3d 1139, 1142; Wells Fargo Bank, N.A. v Morales, 178 A.D.3d 881, 882).
This Court is not bound by the law of the case doctrine and may consider the defendant's contentions (see Mosher-Simons v County of Allegany, 99 N.Y.2d 214, 218-219; US Bank N.A. v Oliver, 180 A.D.3d 843, 844). However, the defendant's contentions are without merit. The plaintiff established, prima facie, that the notice requirement of RPAPL 1304 was inapplicable, as the subject loan was not a "home loan" within the meaning of RPAPL 1304 (see Wall St. Mtge. Bankers, Ltd. v Berquin, 213 A.D.3d 972, 975; MLB Sub I, LLC v Mathew, 202 A.D.3d 1078, 1080). In opposition, the defendant failed to raise a triable issue of fact.
Further, the plaintiff established, prima facie, that it complied with the notice of default provision of the mortgage agreement (see MLB Sub I, LLC v Mathew, 202 A.D.3d at 1080). In opposition, the defendant failed to raise a triable issue of fact.
The parties' remaining contentions need not be addressed in light of our determination.
IANNACCI, J.P., MALTESE, VOUTSINAS and VENTURA, JJ., concur.