DECISION/ORDER

Upon the foregoing papers, the motion and cross-motion are decided as follows:

In this action to foreclose a mortgage on an owner occupied two family dwelling, the plaintiff moves for summary judgment and for an order of reference. Plaintiff also seeks an order striking the answer interposed by defendant Daniel Mitchell, awarding it a default judgment against the non-appearing defendants and amending the caption by deleting the John Doe defendants. Defendant, Daniel Mitchell, cross moves to dismiss the action alleging, inter alia, that plaintiff's failure to serve him with RPAPL§1303 notice requires that the action be dismissed.

Defendant Mitchell's cross-motion will be addressed first. Annexed to plaintiff's moving papers is a copy of the affidavit of service plaintiff claims demonstrates its compliance with RPAPL § 1303. Plaintiff's process server averred that on September 8, 2009, at 11:26 a.m., he personally served defendant Mitchell with the required RPAPL § 1303 notice when he served him with the summons and complaint. He further averred that service was effected at plaintiff's place of residence, 23 Dewey Place, Brooklyn, New York.

In support of his cross-motion, defendant Mitchell submitted an affidavit stating that he was never personally served with RPAPL § 1303 notice or with the summons and complaint. He averred that at the time he was purportedly served with these papers, he was more than a mile away from his home purchasing goods at a local store.

Inasmuch as defendant Mitchell submitted admissible proof controverting the contents of the affidavit of service of plaintiff's process server, the Court referred the issue of whether [*2]defendant Mitchell was served with RPAPL § 1303 to a Special Referee for the purpose of conducting a traverse hearing. Special Referee Nina Kurtz conducted a traverse hearing and issued an order dated March 13, 2014 finding that "service of process upon Daniel Mitchell was not properly effectuated." For the reasons stated below, the action must be dismissed.

RPAPL § 1303 was enacted in July 2006 as part of the Home Equity Theft Prevention Act (HETPA) for the purposes of affording greater protections to homeowners confronted with foreclosure (First Nat. Bank of Chicago v Silver, 73 AD3d 162, 165 [2d Dept 2010], citing Senate Introducer Mem in Support, Bill Jacket, L 2006, ch 308, at 7-9; Countrywide Home Loans, Inc. v Taylor, 17 Misc 3d 595 [Sup Ct, Nassau County 2007]). The statute "requires the foreclosing party in a residential mortgage foreclosure action to deliver statutory-specific notice to the homeowner, together with the summons and complaint" (First Natl. Bank of Chicago, 73 AD3d at 165). The notice required pursuant to RPAPL § 1303 must be sent to " any mortgagor if the action relates to an owner-occupied one-to-four family dwelling" (RPAPL 1303[1][a]). "[T]he foreclosing party has the burden of showing compliance [with RPAPL § 1303] and, if it fails to demonstrate such compliance, the foreclosure action will be dismissed" (id. at 166; see also Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 102 [2d Dept 2011]). Here, since it has been determined that defendant Mitchell was not properly served with RPAPL § 1303 notice, the action must be dismissed.

There is no merit to plaintiff's contention that defendant Mitchell waived plaintiff's non-compliance with RPAPL § 1303 as a grounds for dismissal by failing to assert this ground in his answer. While it is true that by failing to assert jurisdictional defenses based on improper service of process, defendant Mitchell waived such defenses (CPLR 3211[e]), a lender's failure to comply with RPAPL § 1303 is not an affirmative defense that a defendant to a foreclosure action is required to assert in an answer. As stated above, the foreclosing party has the burden of showing compliance with RPAPL § 1303 and, "if it fails to demonstrate such compliance, the foreclosure action will be dismissed" (First Natl. Bank of Chicago, 73 AD3d at 166; Aurora Loan Servs., LLC, 85 AD3d at 102; see also Prompt Mortgage Providers of N. Am., LLC v Singh, 132 AD3d 833, 834 [2d Dept 2015] ). Moreover, pursuant to CPLR 3211[e], only objections based upon a ground set forth in paragraphs one, three, four, five and six of CPLR 3211[a] are waived unless raised either by a pre-answer motion to dismiss or in a responsive pleading. The failure to comply with RPAPL § 1303 is not one of these grounds.

For the above reasons, it is hereby

ORDERED that defendant Mitchell's cross-motion to dismiss is GRANTED and the within action is DISMISSED, and it is further

ORDERED that plaintiff's motion is DENIED as moot.

This constitutes the decision and order of the Court.