You are here: / / FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE...
,

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))

You might also like
Defendant’s Placement of a Bag in the Engine Compartment Deemed Inconsistent with An Innocent Explanation
SCAFFOLD DID NOT HAVE A SAFETY RAILING, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON 240 (1) CAUSE OF ACTION.
DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT).
NEW YORK’S TAX SCHEME DOES NOT VIOLATE THE DORMANT COMMERCE CLAUSE BY DOUBLE TAXATION OF INTANGIBLE INCOME RE PLAINTIFFS WHO ARE STATUTORY RESIDENTS OF NEW YORK AND DOMICILED IN CONNECTICUT (FIRST DEPT).
PRESENCE OF POLICE OFFICERS AND OFFICER’S STATEMENT TO THE VICTIM DID NOT RENDER THE SHOWUP INDENTIFICATION UNDULY SUGGESTIVE.
Discrimination (Re Licensing) Based on Criminal Conviction Disallowed
EVEN THOUGH THE RECONSTRUCTION OF THE EAST RIVER PARK WILL BENEFIT THE SURROUNDING COMMUNITY (FLOOD PROTECTION) AS WELL AS THE PARK, THE RECONSTRUCTION SERVES A PARK PURPOSE AND THE APPROVAL OF THE STATE LEGISLATURE IS THERFORE NOT REQUIRED UNDER THE PUBLIC TRUST DOCTRINE (FIRST DEPT).
APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE ABSENCE OF A REASONABLE EXCUSE (FIRST DEPT).

Categories

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

Copyright © 2023 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...