New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Civil Procedure2 / FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE...
Civil Procedure, Foreclosure

FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) the failure to cite the CPLR provision upon which the cross motion to vacate the default was based was not fatal to the motion because the basis was clear from the motion papers, (2) there was a question of fact whether defendant was served with the foreclosure summons and complaint requiring a traverse hearing, and (3) because defendant did not live at the subject premises (he lived next door), the CPLR 3215(G)(3) notice requirement did not apply:

Plaintiff argues that the subject action is not a residential mortgage foreclosure action because such actions involve foreclosure of a “home loan,” which according to RPAPL (Real Property Actions and Proceedings Law) 1304(6)(iii) is any loan secured by property “which is or will be occupied by the borrower as the borrower’s principal dwelling.” It is undisputed that defendant does not reside at the mortgaged property. …  Therefore, plaintiff asserts the action is not subject to the additional mailing requirement of CPLR 3215.

CPLR 3215(g)(3) provides that when a default judgment “based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation,” that person is entitled to additional notice of the action, which is provided by mailing the summons to his or her place of residence. The provision was enacted out of concern for “unsophisticated homeowners” who “do not receive sufficient notice that they are about to lose their homes through foreclosure” … . As defendant does not reside at the mortgaged property, this foreclosure proceeding does not place his home at risk. Accordingly, we find that plaintiff was not required to serve a 3215(g)(3) notice on defendant. Bank of Am., N.A. v Diaz, 2018 NY Slip Op 02421, First Dept 4-10-18

​FORECLOSURE (FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))/CIVIL PROCEDURE (FORECLOSURE, FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))/CPLR 3215(g)(3) (FORECLOSURE, FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))/TRAVERSE HEARING (FORECLOSURE, FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))

April 10, 2018/by Bruce Freeman
Tags: First Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2018-04-10 12:16:022020-01-26 10:43:38FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT).
You might also like
THE ELEVATOR COMPANY, BY CONTRACT, HAD COMPLETE RESPONSIBILITY FOR ELEVATOR MAINTENANCE; THEREFORE THE BUILDING OWNER AND MANAGER WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT AGAINST THEM IN THIS RES IPSA LOQUITUR ELEVATOR-MALFUNCTION-ACCIDENT CASE (FIRST DEPT).
REVERSIBLE ERROR TO RECONSIDER THE VERDICT.
ACCOUNTING CAUSE OF ACTION IN THIS SHAREHOLDERS’ DERIVATIVE SUIT SHOULD NOT HAVE BEEN DISMISSED; ALTHOUGH SUA SPONTE ORDERS ARE NOT APPEALABLE, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE; PROPER WAY TO HANDLE A SUA SPONTE ORDER IS TO MOVE TO VACATE AND THEN APPEAL (FIRST DEPT).
PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE INJURY WAS CAUSED BY THE ACCIDENT, AS OPPOSED TO A DEGENERATIVE DISEASE; TWO-JUSTICE DISSENT.
SUPREME COURT, PURSUANT TO CPLR ARTICLE 77, PROPERLY RESOLVED THE DISTRIBUTION OF A $4.5 BILLION GLOBAL SETTLEMENT PAYMENT BY JP MORGAN CHASE IN THIS RESIDENTIAL-MORTGAGE-BACKED-SECURITIES-RELATED ACTION (FIRST DEPT).
ALTHOUGH DEFENDANTS’ INSURER OBTAINED A DECLARATORY JUDGMENT (BY DEFAULT) THAT IT WAS NOT OBLIGATED TO PAY NO-FAULT BENEFITS TO PLAINTIFF PEDESTRIAN IN THIS TRAFFIC ACCIDENT CASE, THE DECLARATORY JUDGMENT DID NOT PRECLUDE, UNDER EITHER CLAIM OR ISSUE PRECLUSION, PLAINTIFF’S PERSONAL INJURY ACTION AGAINST DEFENDANTS (FIRST DEPT).
THE CONTROLLING STATUTE DOES NOT PROVIDE THAT THE CITY CAN SUE FOR DAMAGES FOR INJURY TO TREES, THE REGULATION WHICH PURPORTS TO ALLOW SUCH A SUIT DECLARED INVALID (FIRST DEPT).
New York City Taxi and Limousine Commission (TLC) Did Not Have the Authority to Promulgate “Health Care Rules” and Mandate Deductions from Taxi Fares to Pay for Healthcare Services and Disability Coverage for “Medallion” Taxi Cab Drivers

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trusts and Estates
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Water Law
  • Workers' Compensation
  • Zoning

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2022 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE... FORUM SELECTION CLAUSE APPLIES TO NONSIGNATORY ATTORNEY BASED UPON ATTORNEY’S...
Scroll to top