Summary
This Appellate Division decision reverses a lower court order granting a defendant's motion to dismiss a mortgage foreclosure complaint based on the plaintiff's failure to obtain leave to commence a second action while a prior foreclosure action was pending. The court held that noncompliance with Real Property Actions and Proceedings Law § 1301(3) constitutes an affirmative defense that must be raised via a pre-answer motion or answer, which the defendant failed to do after entering a default. The appellate court also rejected alternative grounds for dismissal raised by the defendant regarding notice requirements and other procedural statutes. Consequently, the cross-motion to dismiss was denied, and the foreclosure action against the defendant was allowed to proceed.
Topics
Practice areas
Questions Presented
- Whether the Supreme Court erred in granting dismissal of the complaint against the defendant for failure to obtain leave under RPAPL 1301(3).
Holdings
- The appellate division reversed the dismissal, holding that the defendant could not invoke RPAPL 1301(3) as an affirmative defense without first vacating his default and obtaining leave, and therefore the trial court erred in granting the dismissal.
Key quotations
“Noncompliance with RPAPL 1301(3) is an affirmative defense (see NY Commercial Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756, 756‑757).” (756-757)
“The defendant, "having failed to interpose an answer" in the instant action "or file a timely pre‑answer motion asserting the defense ... could not properly invoke that defense without first vacating [his] default and obtaining leave to serve a late answer that assert[ed] [RPAPL 1301(3)] as an affirmative defense" (Capital One N.A. v Ezkor, 209 AD3d 823, 825).” (825)
Factual background
HSBC sued Malcolm Anderson in 2007 and again in 2008 to foreclose the same mortgage; both actions were discontinued. In April 2010 EMC Mortgage Corporation filed a foreclosure action based on the same alleged default. The defendant did not answer the complaint. In May 2023 the defendant moved to dismiss, asserting that the plaintiff filed the action without required leave under RPAPL 1301(3). The trial court dismissed the complaint as to the defendant.
Procedural history
HSBC initiated foreclosure actions in 2007 and 2008 that were later discontinued. EMC Mortgage Corporation commenced the present foreclosure action in 2010. The defendant failed to answer and later moved to dismiss on the ground that the plaintiff filed the action while the 2008 action was pending without leave under RPAPL 1301(3). The Supreme Court, Kings County, granted the dismissal. EMC appealed.
Remand instructions
The order of the Supreme Court, Kings County is reversed insofar as appealed from, with costs, and the cross‑motion to dismiss the complaint as to the defendant is denied.