Supreme Court, Suffolk County, February 27, 2018 [*2]

Morgan, Lewis & Bockius, New York City, for plaintiff.

Charles Wallshein Esq. PLLC, Melville, for Michael E. Condello, also known as Michael Condello, and another, defendants.

It is ordered that this motion (No. 001) by the plaintiff for, among other things, summary judgment, amendment of the caption and the appointment of a referee to compute is granted in its entirety; and it is further ordered that the cross motion (No. 002) by the defendants, Michael and Ellen Condello, for dismissal is denied in its entirety; and it is further ordered that the proposed order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further ordered that plaintiff is directed to file a notice of entry within five days of receipt of this order pursuant to 22 NYCRR 202.5-b (h) (3).

This foreclosure action was commenced by filing on August 14, 2013. In essence, on March 16, 2006, defendant Michael Condello borrowed $432,000 from plaintiff's predecessor-in-interest and executed a promissory note and, together with Ellen Condello, a mortgage. The terms of the loan were thereafter modified effective December 1, 2012, to provide for a new unpaid principal balance of $338,808.82 and a decreased interest rate. Two months later, on February 1, 2013, Michael Condello defaulted by failing to pay the monthly installments due and owing. Michael and Ellen Condello appeared through counsel by filing an answer on September 5, 2013. An amended answer alleging 17 affirmative defenses and five counterclaims was later filed on August 26, 2014.

The plaintiff addressed its burden of proof in the moving papers on this summary judgment motion and refuted the affirmative defenses of the answer. Therefore, plaintiff has satisfied its prima facie burden on this summary judgment motion (see HSBC Bank USA, N.A. v Espinal, 137 AD3d 1079 [2d Dept 2016]; U.S. Bank N.A. v Cox, 148 AD3d 962 [2d Dept 2017]). The burden then shifts to defendants (see Bank of Am., N.A. v{**59 Misc 3d at 429} DeNardo, 151 AD3d 1008 [2d Dept 2017]) and it is [*3]incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting plaintiff's prima facie showing or in support of the affirmative defenses and counterclaims asserted in the answer or otherwise available to defendants (see Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]; Grogg v South Rd. Assoc., L.P., 74 AD3d 1021 [2d Dept 2010]; Wells Fargo Bank v Das Karla, 71 AD3d 1006 [2d Dept 2010]; Washington Mut. Bank, F.A. v O'Connor, 63 AD3d 832 [2d Dept 2009]; JP Morgan Chase Bank, N.A. v Agnello, 62 AD3d 662 [2d Dept 2009]; Aames Funding Corp. v Houston, 44 AD3d 692 [2d Dept 2007]).

Notably, affirmative defenses predicated upon legal conclusions that are not substantiated with allegations of fact are subject to dismissal (see CPLR 3013, 3018 [b]; Katz v Miller, 120 AD3d 768 [2d Dept 2014]; Becher v Feller, 64 AD3d 672, 677 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 AD3d 619 [2d Dept 2008]). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel v Baiden, 36 NY2d 539 [1975]; see also Madeline D'Anthony Enters., Inc. v Sokolowsky, 101 AD3d 606 [1st Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079 [2d Dept 2010]). Additionally, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus without any efficacy (see New York Commercial Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756 [2d Dept 2013]; Starkman v City of Long Beach, 106 AD3d 1076 [2d Dept 2013]).

Here, the defendants' opposition and cross motion (No. 002) rest solely on allegations regarding plaintiff's compliance with RPAPL 1304. It is noted that defendants raise this contention for the first time in opposition, as it was not raised as a defense in the amended answer. The court also notes that although both defendants filed an answer, only Michael Condello has submitted an affidavit in support of the opposition and cross motion. The court addresses the allegations raised herein. However, in accordance with the above, all affirmative defenses and claims raised in the amended answer and not addressed{**59 Misc 3d at 430} in the opposition and cross motion are dismissed as abandoned.^[FN1]

The defendants pose two challenges to the plaintiff's compliance with RPAPL 1304. First, they allege that plaintiff violated the "strict compliance" requirements of RPAPL 1304 by including an additional informational page in the same envelope as the notice. The defendants' second contention challenges plaintiff's compliance with the mailing requirements of RPAPL 1304. For the reasons that follow, the defendants' allegations are rejected and the cross motion denied.

By way of background, the "strict compliance" component of RPAPL 1304 originated with the appellate court's decision in Aurora Loan Servs., LLC v Weisblum, where it was held that the plaintiff must demonstrate strict compliance with the statute or face dismissal (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103 [2d Dept 2011]). The Court noted that the legislative intent behind the Home Equity Theft Prevention Act (Real Property Law § 265-a [HETPA]), through which RPAPL 1304 was enacted, was to provide greater protections to borrowers facing foreclosure (see First Natl. Bank of Chicago v Silver, 73 AD3d 162, 165 [2d Dept 2010], citing Senate Introducer's Mem in Support, Bill Jacket, L 2006, ch 308 at 7-9). RPAPL 1304 was thereafter enacted "to aid the homeowner in an attempt to avoid litigation" and to facilitate communication between {**59 Misc 3d at 431}distressed homeowners and lenders and/or servicers (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 107, citing Senate Introducer's Mem in Support, Bill Jacket, L 2008, ch 472 at 10; HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 825 [2d Dept 2017]). Specifically, "[t]he bill sponsor sought 'to bridge that communication gap in order to facilitate a resolution that avoids foreclosure' by providing a preforeclosure notice advising the borrower of 'housing counseling services available in the borrower's area' and an 'additional period of time . . . to work on a resolution' " (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 107-108, citing Senate Introducer's Mem in Support, Bill Jacket, L 2008, ch 472 at 10).

To achieve this end, the statute requires that the lender/servicer mail a notice containing "specific, mandatory language" to the borrower at least 90 days prior to commencement of an anticipated foreclosure filing (RPAPL 1304 [1]). The content requirements of the notice support the "underlying purpose of HETPA to afford greater protections to homeowners confronted with foreclosure" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103 [2011], supra, citing First Natl. Bank of Chicago v Silver, 73 AD3d 162, 165 [2d Dept 2010]). Further, the statute provides that the mailing should take place "in a separate envelope from any other mailing or notice" (RPAPL 1304 [2]).

Here, an additional notice containing three sections was included in the envelope with the [*4]90-day notice. The first section of the additional page was directed to service-members and their dependents, and provided information regarding benefits and protections that this class of borrowers are entitled to under the federal Servicemembers Civil Relief Act. The second section was directed to all customers and advised them to be wary of organizations that may charge a fee in connection with housing counseling services or loan modifications, and provided telephone numbers to which the borrowers can report what they believe to be suspicious activity. This section also provided the servicer's phone number and urged the borrower to contact that number to discuss available loss mitigation options. The last section included information regarding the purpose of the 90-day notice if the borrowers were protected under a bankruptcy stay.

The defendants contend that the inclusion of this notice renders the "mailing defective on its face," and "frustrate[s] the legislative intent of the statute" as it discourages borrowers from contacting the housing counselors on the list provided in{**59 Misc 3d at 432} the mailing. They allege that the additional notice was an attempt to "discredit and dissuade" the borrowers from contacting the housing counseling agencies, and surmise that the inclusion demonstrates that plaintiff did not strictly comply with RPAPL 1304. The court disagrees. At the outset, the court notes that the defendants do not claim to have attempted to utilize any of the information provided anywhere in the mailing; therefore, there was no opportunity for any breakdown in communication. Under such circumstances, it is hard to see how the legislative policy of seeking "to bridge that communication gap in order to facilitate a resolution that avoids foreclosure" has been violated.

Nevertheless, the information provided in the additional mailing does not alter any of the protections provided by the statute. The purpose of and intent behind RPAPL 1304 was to facilitate communication between the plaintiff and the defendant. Here, the content of the additional page furthers that intent "to provide a homeowner with information necessary . . . to preserve and protect home equity" (Real Property Law § 265-a [1] [d]) by providing both service-members and non-service-members with more resources to enable them to do so and a warning to keep in mind while utilizing that information.

Defendants' claim raises an additional issue that courts have often faced in such statutory interpretation cases. For instance, in People ex rel. Baez v Superintendent, Queensboro Corr. Facility (127 AD3d 110, 119 [2d Dept 2015]), the Second Department proclaimed, in examining the Drug Law Reform Act, "[t]his Court will not permit the petitioner to convert a shield into a sword." The same Court, in interpreting General Municipal Law § 50-e, in Se Dae Yang v New York City Health & Hosps. Corp. (140 AD3d 1051, 1052 [2d Dept 2016]), held that the statute "was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones." Finally, as the Court of Appeals stated in Benjamin v Koeppel (85 NY2d 549, 553 [1995]), "the courts are especially skeptical of efforts by clients or customers to use public policy 'as a sword for personal gain rather than a shield for the public good' " (quoting Charlebois v Weller Assoc., 72 NY2d 587, 595 [1988]).

Here, defendants are similarly seeking to use public policy as a sword and not as the legislatively intended shield. It is, therefore, this court's position that the additional notice in this{**59 Misc 3d at 433} case does not violate the strict compliance component of RPAPL 1304.

The defendants' challenge to the mailing component of RPAPL 1304 also fails, as any [*5]claim that the plaintiff's supporting affidavit is deficient is rejected. The affidavit submitted by the plaintiff satisfies the business record exception to the hearsay rule. A business record will be admissible if that record "was made in the regular course of any business and . . . it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (One Step Up, Ltd. v Webster Bus. Credit Corp., 87 AD3d 1, 11 [1st Dept 2011]; see CPLR 4518 [a]). Here, the affidavit of Mary Owens, a vice-president of the plaintiff, states that her averments in the affidavit are based on her own personal knowledge obtained through her review of the plaintiff's business records, including those of the defendants, which are kept and maintained in the regular course of plaintiff's business.^[FN2] Therefore, the affidavit adequately sets forth the basis of Ms. Owens' knowledge, established the admissibility of the documents appended to the affidavit as business records, and comports with the dictates of HSBC Bank USA, N.A. v Ozcan (154 AD3d 822 [2d Dept 2017]; see Bank of Am., N.A. v Brannon, 156 AD3d 1 [1st Dept 2017]; see also Olympus Am., Inc. v Beverly Hills Surgical Inst., 110 AD3d 1048 [2d Dept 2013]; DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 [2d Dept 2003]).

Moreover, as in Citigroup v Kopelowitz (147 AD3d 1014, 1015 [2d Dept 2017]), here, "the records themselves actually evince the facts for which they are relied upon."

In light of the above, the court finds that the plaintiff has sufficiently demonstrated its entitlement to the relief requested on this motion (see CPLR 3212, 3215, 1003; RPAPL 1321; Wells Fargo Bank, N.A. v Ali, 122 AD3d 726 [2d Dept 2014]; Central Mtge. Co. v McClelland, 119 AD3d 885 [2d Dept 2014]; Peak Fin. Partners, Inc. v Brook, 119 AD3d 539 [2d Dept 2014]; Plaza Equities, LLC v Lamberti, 118 AD3d 688 [2d Dept 2014]; Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]).{**59 Misc 3d at 434}

The proposed order of reference, as modified by the court, has been signed simultaneously with this memorandum decision and order.