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PLAINTIFF DID NOT DEMONSTRATE THE CONDITIONS PRECEDENT TO THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN SATISFIED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. The mortgage included conditions precedent to the acceleration of the debt and plaintiff’s papers did not demonstrate satisfaction of the conditions precedent:

The mortgage required that the lender give notice of a date by which the borrower must correct a default in order to avoid acceleration. It further required that the date specified in the notice “be at least 30 days from the date on which the notice is given.” The mortgage also provided that notice by first-class mail “is considered given” on the date mailed.

In support of its motion for summary judgment, the plaintiff failed to establish, prima facie, that it complied with this condition precedent to accelerating the mortgage. Specifically, in support of its motion for summary judgment, the plaintiff presented conflicting evidence as to whether it mailed the notice at least 30 days before the date specified in that notice. Inasmuch as the plaintiff’s own evidence submitted in support of the motion demonstrated the existence of a triable issue of fact as to whether the plaintiff complied with the 30-day notice provision, the plaintiff’s motion should have been denied without regard to the sufficiency of the defendant’s opposition papers … . Wilmington Sav. Fund Socy. FSB v Yisroel, 2018 NY Slip Op 08174, Second Dept 11-28-18

FORECLOSURE (PLAINTIFF DID NOT DEMONSTRATE THE CONDITIONS PRECEDENT TO THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN SATISFIED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT LAW (FORECLOSURE, (PLAINTIFF DID NOT DEMONSTRATE THE CONDITIONS PRECEDENT TO THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN SATISFIED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, PLAINTIFF DID NOT DEMONSTRATE THE CONDITIONS PRECEDENT TO THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN SATISFIED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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