Supreme Court, Rockland County, July 14, 2023

Legal Aid Society of Rockland County, Inc. (Derek Tarson of counsel) for Angel Sandoval and another, defendants.

Knuckles, Komosinski & Manfro, LLP (Ali Degan of counsel) for plaintiff.

In this residential mortgage foreclosure action, the defendants, Angel Sandoval and Yolanda Sandoval (hereafter, defendants), have moved for an order dismissing the amended complaint pursuant to CPLR 3211 (a) (1).

Plaintiff commenced this action by filing a summons and complaint on September 15, 2022, seeking to foreclose on a mortgage dated September 21, 2001, given by defendants to Wells Fargo Home Mortgage, Inc., relative to the premises located at 14 Mountainview Lane, Garnerville, New York. At the time this action was commenced, there was a separate mortgage foreclosure action pending between the same parties concerning the same mortgage (Sup Ct, Rockland County, index No. 035306/2021 [hereafter, the 2021 action]).^[FN*]

In the instant case, plaintiff served RPAPL 1304 notices to defendants on or about May 4, 2022. Admittedly, this was during the pendency of the 2021 action, but more than 90 days before the commencement of the instant action. Defendants allege that the RPAPL 1304 [*2]notices in the instant action are defective as they were sent while the 2021 action was pending, which they claim violates the entire purpose of RPAPL 1304, which is to provide the homeowners with a 90-day window of time to work out a resolution and avoid litigation altogether.

Plaintiff argues that the court should strictly construe RPAPL 1304 as it mandates a condition precedent and is therefore a derogation of plaintiff's common-law right to pursue an action in foreclosure. Accordingly, plaintiff claims that strict construction of the statute does not require plaintiff to discontinue the 2021 action before serving the RPAPL 1304 notices in this action.

There is no dispute that the remedial purpose of RPAPL 1304 is to aid the homeowner in attempting to avoid litigation (see Emigrant Bank v Cohen, 205 AD3d 103 [2d Dept 2022]; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95 [2d Dept 2011]). As such, and contrary to plaintiff's contention, RPAPL 1304 is to be liberally construed to effectuate its remedial intent (see Makinen v City of New York, 30 NY3d 81, 88 [2017], quoting Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 676 [1997]; Post v 120 E. End Ave. Corp., 62 NY2d 19, 24{**80 Misc 3d at 357} [1984] ["remedial (statute) . . . should be liberally construed to spread its beneficial effects as widely as possible"]; McKinney's Cons Laws of NY, Book 1, Statutes § 321 ["Generally, remedial statutes are liberally construed to carry out the reforms intended and to promote justice"]).

In addition to the foregoing, the court also notes that "[a] foreclosure action is equitable in nature and triggers the equitable powers of the court" (U.S. Bank N.A. v Losner, 145 AD3d 935, 937 [2d Dept 2016]; US Bank N.A. v Williams, 121 AD3d 1098 [2d Dept 2014]; Mortgage Elec. Registration Sys., Inc. v Horkan, 68 AD3d 948 [2d Dept 2009]). "Once equity is invoked, the court's power is as broad as equity and justice require" (U.S. Bank N.A. v Losner, 145 AD3d at 938).

Based upon the foregoing, the court finds that RPAPL 1304 is to be interpreted liberally, rather than strictly, in order to effectuate its remedial intent. As such and under the circumstances, including the court's equitable powers, it is the opinion of this court that the plaintiff's RPAPL 1304 notices in the instant case are violative of the statute's purpose of assisting homeowners to avoid foreclosure litigation. To permit service of said notices while a foreclosure action is already pending would circumvent the statute and negate its protective purpose.

Accordingly, it is ordered that defendants' motion to dismiss the complaint herein is granted.