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THE RPAPL 1304 NOTICE REQUIREMENTS WERE CHANGED BETWEEN THE TIME THE NOTICE WAS SENT TO THE DEFENDANTS AND WHEN THE FORECLOSURE PROCEEDINGS WERE BROUGHT; THEREFORE THE RPAPL 1304 NOTICE WAS DEFECTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff’s motion for summary judgment should not have been granted. The RPAPL 1304 notice requirements were changed between the time the notice was sent to defendants and when foreclosure action was commenced. Therefore the RPAPL 1304 notice, a condition precedent to any foreclosure action, was invalid:

Here, the plaintiff’s RPAPL 1304 notice, dated July 15, 2016, contained the statutory language that was in effect at the time of the notice. However, RPAPL 1304 was amended effective December 20, 2016, and the amendment changed the language that the statute required the notice to contain … . Thus, the plaintiff’s July 15, 2016 RPAPL 1304 notice did not satisfy the condition precedent to litigation for this action commenced in August 2017, after the effective date of the amendment … . Although this issue is raised for the first time on appeal, it may be reached as it involves a pure question of law that appears on the face of the record and could not have been avoided if brought to the court’s attention at the proper juncture … . Wilmington Sav. Fund Socy., FSB v Fischman, 2026 NY Slip Op 05212, Second Dept 9-2-26

Practice Point: The RPAPL 1304 foreclosure notice provisions were changed by amendment between the time the notice was sent to defendants and the action was brought, rendering the notice defective. The issue was properly raised for the first time on appeal.​

 

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