Opinion
No. 4647/2012.
2013-01-4
HSBC Bank USA, N.A., Sole Shareholder of HSBC Mortgage Corporation (USA), Plaintiff, v. Daniel BRADIEL, “John Doe” and “Jane Doe” said names being fictitious, it being the intention of plaintiff to designate any and all occupants of premises being foreclosed herein, Defendants.
ROBERT J. McDONALD, J.
The following papers numbered 1 to 17 read on this motion by defendant, Daniel Bradiel, for an order pursuant to CPLR 3211(a)(8) dismissing the complaint on the ground of lack of personal jurisdiction; for an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (7) for failure to state of cause of action for foreclosure or reformation of the mortgage; and for an order dismissing the complaint for failure to comply with the substantive and procedural requirements of RPAPL §§ 1303, 1304, and 1306; and the plaintiff's cross-motion for an order pursuant to CPLR 2004 for leave to correct the proof of service nunc pro tunc:
+-----------------------------------------------------+ ¦Papers ¦Numbered ¦ +------------------------------------------+----------¦ ¦Notice of Motion–Exhibits–Affirmations ¦1–6 ¦ +------------------------------------------+----------¦ ¦Cross–Motion and Affirmation in Opposition¦7–13 ¦ +------------------------------------------+----------¦ ¦Opposition to Cross–Motion and Reply ¦14–17 ¦ +-----------------------------------------------------+
This is a mortgage foreclosure action commenced by the plaintiff by the filing of a lis pendens and summons and complaint on March 5, 2012. The action concerns premises located at 1616 Norman Street, Ridgewood, New York, 11385. The complaint alleges that a note and mortgage were executed by the defendant on September 19, 2006 in the principal amount of $361,000. On May 4, 2010, a Home Affordable Modification Agreement was executed by the defendant to modify the terms and conditions of the mortgage and to form a new lien in the amount of $428,923.49.
The plaintiff contends that the defendant defaulted on the loan commencing with the payment due on June 2011, at which time there was a principal balance due and owing of $419,837.63. Plaintiff asserts that prior to commencing the action a ninety day notice was mailed via certified mail pursuant to RPAPL § 1304 on March 8, 2011. As a result of the default, the plaintiff commenced the instant foreclosure action and served the defendant pursuant to CPLR 308(2) by serving a person of suitable age and discretion, one Meonedte Stevens, at the mortgaged premises on March 8, 2012, with the mailing component sent out on March 30, 2012. Plaintiff alleges that defendant was served with a RPAPL § 1303 notice on pink paper as well as a notice pursuant to RPAPL § 1320.
The affidavit of service, sworn to by process server James P. McCauley, on March 16, 2012, states that he served the summons and complaint as well as a RPAPL § 1303 notice on colored paper and RPAPL § 1320 notice on the defendant at 1616 Norman Street, Ridgewood, New York by service upon one Meonedte Stevens on March 14, 2012. The process server states that Ms. Stevens identified herself as the defendant's aunt. The affidavit of process server Frank Squillace, dated March 15, 2012 states that on March 15, 2012 he enclosed a copy of the “mentioned documents” and mailed them to the defendant at the subject premises. On March 30, 2012, Frank Squillace mailed a copy of “mentioned documents” to the defendant at the subject premises. An affidavit from Robert Ciulla states that he also sent a copy of “mentioned documents” to the defendant on April 16, 2012. The “mentioned documents” which were mailed by the process servers were not identified in their affidavits of service.
The complaint also alleges that as a result of a scrivenor's error the property description in the subject mortgage contains errors in the property description. The plaintiff requests that the correct property description, as set forth in an attached exhibit, be determined to be the correct description of the property to be foreclosed
In lieu of filing an answer, Mr. Bradiel now moves by notice of motion, dated May 27, 2012, for an order dismissing the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of personal jurisdiction based upon improper service. Counsel alleges that the affidavit of service does not allege the required mailing and that the three affidavits of mailing only state that “mentioned documents” were mailed without describing the actual documents which were purportedly sent to the defendant.
In addition, Mr. Bradiel contends that the complaint fails to states a cause of action for foreclosure as the plaintiff admits in the complaint that the property description set forth in the subject mortgage contains numerous errors. The complaint requests that the proper and accurate legal description as contained in the deed be substituted nunc pro tunc for the erroneous property description. Defendant also alleges that the complaint is insufficient in that it fails to contain a separate cause of action for reformation of contract.
In addition, the defendant contends that the court lacks jurisdiction because the plaintiff failed to serve the notice required by RPAPL § 1303 on colored paper and failed to properly serve a ninety day notice pursuant to RPAPL § 1304 prior to commencing the action. Defendant asserts that pursuant to the Second Department holding in Aurora Loan Services v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609 [2d Dept.2011], the failure to comply with the ninety day notice requirement set forth in RPAPL § 1304, which was held to be a condition precedent, requires dismissal of the complaint.
In support of the motion defendant submits an affidavit from Meonedte Steven stating that the affidavit of process server McCauley is false in that there was no notice served with the summons and complaint that was any color other than white.
Mr. Bradiel submits his own affidavit dated May 29, 2012 stating that he did not receive a ninety day notice by registered mail, by certified mail, or by any other means.
In opposition, plaintiff's counsel Miranda L. Sharlette, Esq., states that a ninety day notice was mailed to the defendant via certified mail on March 8, 2012. A copy of the notice is annexed to the opposition papers. Counsel also affirms, based upon the affidavit of the process server, that the defendant was properly served pursuant to CPLR 308(2) by serving a person of suitable age and discretion and by serving the defendant by mail both on March 15, 2012, March 30, 2012, and April 16, 2012. Plaintiff also submits a corrected affidavit of mailing dated July 24, 2012, in which Frank Squillace states that on March 30, 2012 he mailed the defendant a copy of the summons and complaint along with RPAPL § 1303 Notice on colored paper. Plaintiff cross-moves for an order substituting this affidavit of service nunc pro tunc.
With respect to the defendant's contention that he did not receive the ninety day notice, plaintiff submits an copy of a “Track and Confirm” email from the U.S. Postal Service showing that a certain certified letter was delivered to Ridgewood New York on March 11, 2011 and was unclaimed. Pursuant to RPAPL § 1304(2), the requisite 90–day notice must be “sent by the lender or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and if different, to the residence which is the subject of the mortgage.” Notice is considered given as of the date it is mailed. Here, however, the email document regarding the tracking of the certified mail does not indicate the address to which the ninety day notice was sent.
RPAPL 1304 provides inter alia, with regard to a home loan, that at least ninety days before a lender begins an action against a borrower to foreclose on a mortgage the lender must provide notice to the borrower that the loan is in default and his or her home is at risk (see Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d 95 [2011] ). “Proper service of the RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of the foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” (Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d at 107, 923 N.Y.S.2d 609). A plaintiff's failure to show strict compliance requires dismissal (see Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d at 103, 923 N.Y.S.2d 609).
The plaintiff, however, did not submit proper proof of service by someone with actual knowledge that the RPAPL notice was sent by registered or certified mail and also by first-class mail to Mr. Bradiel's last known address as required by the statute (RPAPL 1304[2]; see Wells Fargo Bank, N.A. v. Barrett, 33 Misc.3d 1207(A) [Sup Ct, Queens County 2011] ). Here, the defendant denied receiving the ninety day notice and the tracking email from the U.S. Postal Service showing a certified letter having been sent merely to Ridgewood, N.Y. without indicating a specific address is insufficient proof of service of the ninety day notice. Further, counsel's affirmation is not based upon personal knowledge, and thus, does not constitute proper proof of service (see Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609 [2d Dept.2011] ). As plaintiff has failed to show proper service of the ninety day notice, the complaint must be dismissed.
Accordingly, for all of the aforesaid reasons, it is hereby
ORDERED that the motion by the defendant is granted to the extent that the plaintiff's complaint is dismissed for failure to comply with RPAPL 1304, and the plaintiff's cross-motion is denied as academic, and it is further,
ORDERED, that the County Clerk of Queens County is directed, upon payment of proper fees, if any, to cancel and discharge the notice of pendency filed in this action on March 5, 2012, against property located at 1616 Norman Street, Ridgewood, New York, 11385. The Clerk shall enter upon the margin of the record a notice of cancellation referring to this Order; and it is further
ORDERED, that the Clerk of the County of Queens be served with a copy of this order with notice of entry.