State of N.Y. Mtge. Agency v Stafford 2025 NY Slip Op 31386(U) April 21, 2025 Supreme Court, Livingston County Docket Number: Index No. 000026-2025 Judge: Jennifer M. Noto Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. - ----. - - .. - · · - - - - - · · ----··- - ____ ,._~ - .. , - - , __ .,._ -- • -- -••J NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/21/202
PRESENT: HON. JENNIFER M. NOTO Acting Supreme Court Justice
STATE OF NEW YORK SUPREME COURT COUNTY OF LIVINGSTON
STATE OF NEW YORK MORTGAGE AGENCY,
Plaintiff, DECISION AND ORDER
vs. Index No.: 000026-2025
DANIEL K. STAFFORD, et al, Defendants.
Appearances:
For Plaintiff: For Defendants: Aleisha C. Jennings, Esq. Elizabeth G. Adymy, Esq. Yanci R. Herboldt, Esq. (of counsel) Legal Assistance of Western New York, Inc. McCalla Raymer Leibert Pierce LLC 361 South Main Street 420 Lexington Avenue, Suite 840 Geneva, New York 14456 New York, New York 10170
DECISION Thee-filed documents, listed by NYSCEF as item numbers 1-11, 14-21. 23-24 and 26-35
were read and reviewed in consideration of this Decision and Order.
BACKGROUND AND PROCEDURAL IDSTORY
On or about August 31, 1998, the Defendants obtained a Note/Mortgage in the amount of
$71,295.00 on a residence located at 147 Rochester Street, in the Village of Avon, New York. On
February 1, 2022, the Defendants failed to pay the monthly payment amount due on that date and
each subsequent payment thereafter. As of that date, the principal balance due and owing pursuant
to the terms of the Note/Mortgage was $24,455.99. The first action for foreclosure was filed by
Plaintiff on April 12, 2023 (Index No. 000235-2023). On August 13, 2024, said action (Index
No. 000235-2023) was discontinued without prejudice because the Plaintiff failed to timely seek
I
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a default judgment against the Defendants within a year of the Defendant's default.
On January I 0, 2025, a new or second action for foreclosure was commenced under Index
No. 000026-2025. In paragraph 13 of the Complaint filed on that same date~ the Plaintiff stated it
had "~ent the notices required by [Real Property Actions and Proceedings Law (RPAPL)] §1304,
dated March 24, 2022, to Daniel K. Stafford ami Barbara Stafford by regular and certified mail to
the last known address of the borrowers." (Doc. No. 1). Additionally, in Exhibit A attached to the
Complaint, the Plaintiffs "Proof of Filing Statement," required under RPAPL § 1306, indicated
that the "90-Day Pre-Foreclosure Notice" was mailed to the Defendants on March 24, 2022 ("24-
MAR-22 12.00.00.000 AM"). (Doc. No.1).
On February 7, 2025, the Defendants filed the current motion (Motion No. 1) seeking an
order dismissing the Plaintiff's complaint for failure to timely and properly serve the statutorily
required notices pursuant to RPAPL §1304. (Doc. Nos. 14-21). The Defendants aver that the
Plaintiffs own documents submitted in the instant action establish that it cannot satisfy the
condition precedent of the proper service of a 90-day notice, mandated by RPAPL§ 1304, prior to
the commenc~ment p~the second foreclosure action. (Doc. No. 15).
The Plaintiff filed an Affirmation in Opposition to Defendant's Motion to Dismiss on
March 6, 2025 (Doc. No. 33). In its opposing papers, the Plaintiff has argued that the Defendants'
motion to dismiss be denied due to the Defendants' alleged erroneous interpretation of the 90-day
notice requirement in RPAPL § 1304(4). Instead, the Plaintiff asserted that the 90-day notice need
only be served once in a twelve•month period to the same borrower in connection with the same
loan and same delinquency. The Plaintiff also contended that a pre-answer motion to dismiss is
an inappropriate vehicle to raise an RP APL §1304 defense.
On March 12, 2025, a Reply Affirmation was filed by the Defendants. (Doc. No. 34). The
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NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/21/202
Defendants alleged that thirty-four (34) months had elapsed between the date of the RP APL §1304
notices relied upon by the Plaintiff and the filing of this second foreclosure action. The Defendants
assert that the Plaintiff has failed rto meet the strict compliance required ~th regard to both the
information to be provided pursuant to RPAPL §1304(1) and the timeframe contemplated pursuant
to RPAPL §1304(4). (Doc. No. 34).
Counsel appeared before the Court for the oral argument of the motion on March 14, 2025.
At the conclusion of said appearance, the Court reserved decision. Upon review of the filings and
in consideration of the arguments of counsel, the Court finds as follows.
RELEVANT LAW & SCOPE OF REVIEW
It is well~settled that in reviewing a pre-answer motion to dismiss pursuant to CPLR §3211,
"the pleadings are necessarily afforded a liberal construction" and a court must "accept the facts
as alleged in the complaint as true, accord the plaintiffs the benefit of .every possible favorable
·inference, and determine only whether the facts as alleged fit within any cognizable legal theory."
Collins v. Davirro, 160 A.D.3d 1343, 1343 (4th Dept. 2018); see also, Morales v. Arrowood
Jndem. Co., 203 A.D.3d 1603 (4th Dept.2022); Hall v. McDonald's Corp., 159 A.D.3d 1591,1592
(4th Dept. 2018); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); Goshen v. Mutual Life Ins. Co:,
98 N.Y.2d 314,326 (2002); Goldman v. Metropolitan Life Ins., 5 N.Y.3d 561, 570-.571 (2005);
Baumann Realtors, Inc., v. First Columbia Century-30, LLC, 113 A.D.3d 1091, 1092 (4th Dept.
2014).
CPLR §3211(a}(1) (Dismissal based upon documentary evidence)
Under CPLR §3211(a)(l), "[a] party may move for judgment dismissing one or more
causes of action asserted against him on the ground that: 1. a defense is founded upon documentary
evidence." A motion to dismiss based on documentary evidence may be granted only where
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documentary evidence utterly refutes the plaintiffs factual allegations, resolves all factual issues
as a matter of law, and conclusively disposes of the claims at issue. See, Bedford-Carp Constr.,
Inc. v. Brooklyn Union Gas Co., 215 A.D.3d 907, 908 (2d Dept. 2023); Davis v. Evangelical
Lutheran Church in Am., 204 A.D.3d 1515, 1516 (4th Dept. 2022); Divito v. Glennon, 193 A.D.3d
1326 (4th Dept. 2021); Lots 4 Less Stores, Inc. v. Integrated Properties, Inc., 152 A.D.3d 1181,
1183 (4th Dept. 2017); see also, Goshen v Mutual Life Ins. Co. ofN. Y., 98 N.Y.2d 314,326 (2002);
Leon v. Martinez, 84 N.Y.2d 83 (1994).
To be considered documentary, the evidence must be unambiguous, of undisputed
authenticity and the contents of which are essentially undeniable. Xu v. Van Zwienen, 212 A.D.3d
872,874 (2d Dept. 2023); Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807 (2d Dept.,2017). For
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State of N.Y. Mtge. Agency v Stafford 2025 NY Slip Op 31386(U) April 21, 2025 Supreme Court, Livingston County Docket Number: Index No. 000026-2025 Judge: Jennifer M. Noto Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. - ----. - - .. - · · - - - - - · · ----··- - ____ ,._~ - .. , - - , __ .,._ -- • -- -••J NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/21/202
PRESENT: HON. JENNIFER M. NOTO Acting Supreme Court Justice
STATE OF NEW YORK SUPREME COURT COUNTY OF LIVINGSTON
STATE OF NEW YORK MORTGAGE AGENCY,
Plaintiff, DECISION AND ORDER
vs. Index No.: 000026-2025
DANIEL K. STAFFORD, et al, Defendants.
Appearances:
For Plaintiff: For Defendants: Aleisha C. Jennings, Esq. Elizabeth G. Adymy, Esq. Yanci R. Herboldt, Esq. (of counsel) Legal Assistance of Western New York, Inc. McCalla Raymer Leibert Pierce LLC 361 South Main Street 420 Lexington Avenue, Suite 840 Geneva, New York 14456 New York, New York 10170
DECISION Thee-filed documents, listed by NYSCEF as item numbers 1-11, 14-21. 23-24 and 26-35
were read and reviewed in consideration of this Decision and Order.
BACKGROUND AND PROCEDURAL IDSTORY
On or about August 31, 1998, the Defendants obtained a Note/Mortgage in the amount of
$71,295.00 on a residence located at 147 Rochester Street, in the Village of Avon, New York. On
February 1, 2022, the Defendants failed to pay the monthly payment amount due on that date and
each subsequent payment thereafter. As of that date, the principal balance due and owing pursuant
to the terms of the Note/Mortgage was $24,455.99. The first action for foreclosure was filed by
Plaintiff on April 12, 2023 (Index No. 000235-2023). On August 13, 2024, said action (Index
No. 000235-2023) was discontinued without prejudice because the Plaintiff failed to timely seek
I
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a default judgment against the Defendants within a year of the Defendant's default.
On January I 0, 2025, a new or second action for foreclosure was commenced under Index
No. 000026-2025. In paragraph 13 of the Complaint filed on that same date~ the Plaintiff stated it
had "~ent the notices required by [Real Property Actions and Proceedings Law (RPAPL)] §1304,
dated March 24, 2022, to Daniel K. Stafford ami Barbara Stafford by regular and certified mail to
the last known address of the borrowers." (Doc. No. 1). Additionally, in Exhibit A attached to the
Complaint, the Plaintiffs "Proof of Filing Statement," required under RPAPL § 1306, indicated
that the "90-Day Pre-Foreclosure Notice" was mailed to the Defendants on March 24, 2022 ("24-
MAR-22 12.00.00.000 AM"). (Doc. No.1).
On February 7, 2025, the Defendants filed the current motion (Motion No. 1) seeking an
order dismissing the Plaintiff's complaint for failure to timely and properly serve the statutorily
required notices pursuant to RPAPL §1304. (Doc. Nos. 14-21). The Defendants aver that the
Plaintiffs own documents submitted in the instant action establish that it cannot satisfy the
condition precedent of the proper service of a 90-day notice, mandated by RPAPL§ 1304, prior to
the commenc~ment p~the second foreclosure action. (Doc. No. 15).
The Plaintiff filed an Affirmation in Opposition to Defendant's Motion to Dismiss on
March 6, 2025 (Doc. No. 33). In its opposing papers, the Plaintiff has argued that the Defendants'
motion to dismiss be denied due to the Defendants' alleged erroneous interpretation of the 90-day
notice requirement in RPAPL § 1304(4). Instead, the Plaintiff asserted that the 90-day notice need
only be served once in a twelve•month period to the same borrower in connection with the same
loan and same delinquency. The Plaintiff also contended that a pre-answer motion to dismiss is
an inappropriate vehicle to raise an RP APL §1304 defense.
On March 12, 2025, a Reply Affirmation was filed by the Defendants. (Doc. No. 34). The
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NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/21/202
Defendants alleged that thirty-four (34) months had elapsed between the date of the RP APL §1304
notices relied upon by the Plaintiff and the filing of this second foreclosure action. The Defendants
assert that the Plaintiff has failed rto meet the strict compliance required ~th regard to both the
information to be provided pursuant to RPAPL §1304(1) and the timeframe contemplated pursuant
to RPAPL §1304(4). (Doc. No. 34).
Counsel appeared before the Court for the oral argument of the motion on March 14, 2025.
At the conclusion of said appearance, the Court reserved decision. Upon review of the filings and
in consideration of the arguments of counsel, the Court finds as follows.
RELEVANT LAW & SCOPE OF REVIEW
It is well~settled that in reviewing a pre-answer motion to dismiss pursuant to CPLR §3211,
"the pleadings are necessarily afforded a liberal construction" and a court must "accept the facts
as alleged in the complaint as true, accord the plaintiffs the benefit of .every possible favorable
·inference, and determine only whether the facts as alleged fit within any cognizable legal theory."
Collins v. Davirro, 160 A.D.3d 1343, 1343 (4th Dept. 2018); see also, Morales v. Arrowood
Jndem. Co., 203 A.D.3d 1603 (4th Dept.2022); Hall v. McDonald's Corp., 159 A.D.3d 1591,1592
(4th Dept. 2018); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); Goshen v. Mutual Life Ins. Co:,
98 N.Y.2d 314,326 (2002); Goldman v. Metropolitan Life Ins., 5 N.Y.3d 561, 570-.571 (2005);
Baumann Realtors, Inc., v. First Columbia Century-30, LLC, 113 A.D.3d 1091, 1092 (4th Dept.
2014).
CPLR §3211(a}(1) (Dismissal based upon documentary evidence)
Under CPLR §3211(a)(l), "[a] party may move for judgment dismissing one or more
causes of action asserted against him on the ground that: 1. a defense is founded upon documentary
evidence." A motion to dismiss based on documentary evidence may be granted only where
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documentary evidence utterly refutes the plaintiffs factual allegations, resolves all factual issues
as a matter of law, and conclusively disposes of the claims at issue. See, Bedford-Carp Constr.,
Inc. v. Brooklyn Union Gas Co., 215 A.D.3d 907, 908 (2d Dept. 2023); Davis v. Evangelical
Lutheran Church in Am., 204 A.D.3d 1515, 1516 (4th Dept. 2022); Divito v. Glennon, 193 A.D.3d
1326 (4th Dept. 2021); Lots 4 Less Stores, Inc. v. Integrated Properties, Inc., 152 A.D.3d 1181,
1183 (4th Dept. 2017); see also, Goshen v Mutual Life Ins. Co. ofN. Y., 98 N.Y.2d 314,326 (2002);
Leon v. Martinez, 84 N.Y.2d 83 (1994).
To be considered documentary, the evidence must be unambiguous, of undisputed
authenticity and the contents of which are essentially undeniable. Xu v. Van Zwienen, 212 A.D.3d
872,874 (2d Dept. 2023); Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807 (2d Dept.,2017). For
example, '"[J]udicial records, as well as documents reflecting out*of-court transactions such as
mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable,
would qualify as documentary evidence in the proper case."' Davis, 204 A.D.3d at 1516 (4th Dept.
2022) (internal citation omitted). On the other hand, letters, emails, and deposition testimony, "are
not considered documentary evidence within the intendment of CPLR §321 l(a)(l)." Id. at 1516;
Xu v. Van Zwienen, 212 A.D.3d at 874. Even "[a]n affidavit is not documentary evidence because
its contents can be controverted by other evidence, such as another affidavit." Id. at 874.
RPAPL§1304
RPAPL§ 1304 addresses H[r]equired prior notices'' in foreclosure actions. The section
:mandates that
"[n]otwithstanding any other provision of law, with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least
c:; r-.-F Q
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fourteen-point type which shall include . . . [a specific, delineated set of infonnation]." RP APL§ 1304(1).
Among the required details about the home loan that must be shared consist of the following: the
number of days and the amount of the default; a list of approved housing counseling agencies; and
the encouragement to "take immediate steps to try to achieve a resolution" before any legal action
is commenced. RPAPL§ 1304(1).
''In expanding the protections of RPAPL §130.4 to all home loans, the legislature sought to reduce the number of foreclosures by allowing the parties to 'attempt to work out the default
without imminent threat of a foreclosure action."' Bank ofAm., N.A. v. Kessler, 39 N.Y.3d 317,
326 {2023), citing, CIT Bank N.A. v. Schiffman, 36 NY3d 550,555 {2021). Thus, the underlying
statutory purpose of the required notices in RP APL §1304 is to provide accurate, relevant and
timely information to borrowers to help them from losing their homes. Bank of Am., NA. v.
Joerger, 231 A.D.3d 914,915 (2d Dept. 2024). Therefore, RPAPL §1304 is a remedial statute that
should be read broadly to help borrowers avoid foreclosure. Kessler, 39 N.Y.3d at 326.
Based upon that view, it is axiomatic that "[p]roper service of a RPAPL § 1304 notice
containing the statutorily mandated content is a condition precedent to the commencement of a
foreclosure action and the plaintiff's failure to show strict compliance requires dismissal."
Deutsche Bank Nat'/ Tr. Co. v. Zatari, 220 A.D.3d 1151, 1152-53 (3d Dept. 2023); see also, Wells
Fargo Bank, N.A. v. Palaigos, 235 A.D.3d 1027, 1029 (2d Dept. 2025); Bank ofNew York Mellon
v. Dilavore, 233 A.D.3d 930,931 (2d Dept. 2024); U.S. BankN.A. v. 22-33 Brookha_ven, Inc., 219
A.D.3d 657, 664 (2d Dept. 2022); Deutsche Bank Natl. Trust Co. v. Guevarat 227 A.D.3d 951,
953 (2d Dept. 2024); Citibank, N.A. v. Conti-Scheurer, 172 A.D.3d 17, 20 (2d Dep.t 2019); HSBC
Bank USA v. Rice, 155 A.D.3d 443,443 {I st Dept. 2017). ''[A] plaintiff has complete control over
the acts necessary to effectuate compliance with a condition precedent" HSBC Bank USA v.
[* 5] - ----. -- y - · · - - - ...... • • _....,._,.,._ - _ _ _ _ _ .., 'W' .. , --, _,., _ _. ,.,_.. -- _ , . . .,
Kirschenbaum, 159 A.D.3d 506, 507(1st Dept 2018). Accordingly, the ''failure to comply with
RPAPL §1304 constitute[s] a defense to [a] mortgage foreclosure action, [that can] be raised at
any time." Citimortgage, Inc. v. Espinal, 134 A.D.3d 876, 879 (2d Dept 2015) (internal citations
omitted). In fact, raising the issue of "RPAPL § 1304 compliance has been said to be a 'super
defense,' a condition precedent that may 'be raised at any time' [during the foreclosure action] by
a mortgagor/' except after a judgment of foreclosure and sale has been issued." Beneficial
Homeowner Serv. Corp. v. Jordon-Thompson, 57 Misc. 3d 1213(A) (Suffolk Co. Sup. Ct. 2017),
citing, Aurora Loan Services v. Weisblum, 85 A.D.3d 95 (2d Dept 2011); see also Espinal, 134
A.D.3d at 879. In a foreclosure action, "[a pre-answerlmotion to dismiss a complaint pursuant to
CPLR §321 l(a) may be based on various grounds, including ... [a]failure to comply with RPAPL
§1304 ...." Deutsche Bank Nat'/ Tr. Co. v. Hall, 185 A.D.3d 1006, 1010--11 (2d Dept. 2020).
CONCLUSIO NS OF LAW
In the present case, contrary to the assertions of the Plaintiff, the Court holds that the
Defendants have made a timely and propermotion pursuant to CPLR §321 l(a)(l), sufficiently
demonstrating that the Plaintiff's own filed documents establish that the Plaintiff has not satisfied
the condition precedent of proper service of a 90-day notice, mandated by RPAPL§ 1304. Instead,
relying on the provision of the requir~d loan information from thirty-four months prior to the
.commencement of the second foreclosure action, the alleged notice provided by the Plaintiff in
March 2022 is clearly insufficient and flies in the face of the statutory purpose of the RPAPL §1304
mandates. Therefore, the Defendants' motion must be granted, and the complaint must be
dismissed.
As stated above, compliance with. RPAPL §1304 is a condition precedent to an action to
'7 --i= Q
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foreclose a mortgage. The dismissal of a .complaint for the failure to satisfy a condition precedent
is not a final judgment upon the merits for the purposes of CPLR §§205(a) or 205-a. Accordingly,
the Court must direct the dismissal of the complaint without prejudice. Wells Fargo Bank, N.A. v.
Palaigos, 235 A.D.3d 1027, 1029-30 (2d Dept 2025) (internal citations omitted).
ORDERS
Upon consideration of the arguments of counsel and a careful review of the papers
submitted, it is now
ORDERED that the Defendants' pre-answer motion for an order dismissing the Plaintiffs
Compiaint is GRANTED, without prejudice; and it is further
ORDERED that the Defendants, shall serve a copy of this Decision and Order with Notice
of Entry upon the Plaintiff within thirty (30) days of entry.
This constitutes the Decision and Order ofth Court.
Date: April 1--J ,2025 Jennifer . upreme Court Justice
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