Board of Directors of House Beautiful at Woodbury Homeowners Ass'n v. Godt

Jun 27, 2012
Versions:96 A.D.3d 983
947 N.Y.S.2d 572
p class=“midpage-citation“>70 A.D.3d 983

In an action to foreclose an unpaid assessment lien encumbering certain real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), entered May 20, 2011, which granted the motion of the defendants Kenneth H. Godt and Christina Godt pursuant to CPLR 3211 (a) and RPAPL 1303 to dismiss the complaint insofar as asserted against them for failure to comply with a condition precedent, and denied, as academic, its application to convert the motion into one for summary judgment and, upon conversion, award summary judgment in its favor and to appoint a referee to compute the amount due.

Ordered that on the Court‘s own motion, the notice of appeal from so much of the order as denied, as academic, the appellant‘s application to convert the motion into one for summary judgment and, upon conversion, award summary judgment in its favor and to appoint a referee to compute the amount due is deemed to be an application for leave to appeal from that por-tion of the order, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is modified, on the law, (1) by deleting the provision thereof granting the motion of the defendants Kenneth H. Godt and Christina Godt pursuant to CPLR 3211 (a) and RPAPL 1303 to dismiss the complaint insofar as asserted against them for failure to comply with a condition precedent, and substituting therefor a provision denying the motion, and (2) by deleting the provision thereof denying, as academic, the plaintiff‘s application to convert the motion into one for summary judgment in its favor and to appoint a referee to compute the amount due and substituting therefor a provision denying the application on the merits; as so modified, the order is affirmed, with costs to the plaintiff.

The defendants Kenneth H. Godt and Christina Godt (hereinafter together the respondents) own premises located in Woodbury. The plaintiff, Board of Directors of House Beautiful at Woodbury Homeowners Association, Inc. (hereinafter the HOA), is the homeowners’ association for the premises. In January 2011, the HOA commenced this action to foreclose an unpaid assessment lien encumbering the premises. The respondents moved pursuant to CPLR 3211 (a) and RPAPL 1303 to dismiss the complaint insofar as asserted against them for failure to comply with a condition precedent, arguing that the HOA failed to serve the proper notice of foreclosure with the summons and complaint as required by RPAPL 1303. The HOA opposed the motion, contending that, as a homeowners’ association, it was not required to comply with RPAPL 1303. The HOA also sought to convert the motion to dismiss into one for summary judgment and, upon conversion, award summary judgment in its favor and appoint a referee to compute the amount due. The Supreme Court granted the respondents’ motion to dismiss the complaint insofar as asserted against them, finding that the notice requirement of RPAPL 1303 applied to foreclosures of homeowners’ associations’ liens, and denied the HOA‘s application as academic. The HOA appeals from the order, and we modify.

RPAPL 1303 was enacted in July 2006 as part of the Home Equity Theft Prevention Act (hereinafter HETPA) (see First Natl. Bank of Chicago v Silver, 73 AD3d 162, 165 [2010]; Senate Introducer Mem in Support, Bill Jacket, L 2006, ch 308, at 7-8). As relevant here, that section provides that “[t]he foreclosing party in a mortgage foreclosure action, involving residential real property shall provide notice to . . . any mortgagor if the action relates to an owner-occupied one-to-four family dwelling” (RPAPL 1303 [1] [a]). 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 v Silver, 73 AD3d at 165). “[T]he foreclosing party has the burden of showing compliance therewith and, if it fails to demonstrate such compliance, the foreclosure action will be dismissed” (id. at 166).

“The underlying purpose of HETPA was to afford greater protections to homeowners confronted with foreclosure” (id. at 165; see Real Property Law § 265-a [1] [b], [d]; Countrywide Home Loans, Inc. v Taylor, 17 Misc 3d 595, 598 [2007]; Senate Introducer Mem in Support, Bill Jacket, L 2006, ch 308, at 7). However, rather than refer to foreclosures in general, the plain language of HETPA limits its applicability to “mortgage foreclosure action [s]” (RPAPL 1303 [1] [a] [emphasis added]). The statute makes no reference to foreclosures of other types of liens on real property (cf. Real Property Law § 265-a; Banking Law § 595-a). Relying on the standard canon of construction of “expressio unius est exclusio alterius,” we can infer that the expression of this specific type of foreclosure action—mortgage foreclosure actions—in the statute indicates an exclusion of others (McKinney‘s Cons Laws of NY, Book 1, Statutes § 240; see Morales v County of Nassau, 94 NY2d 218, 224 [1999]; Matter of Petersen v Incorporated Vil. of Saltaire, 77 AD3d 954, 956 [2010]). This conclusion is buttressed by the fact that the Legislature has deemed it necessary to extend the applicability of mortgage foreclosure procedure to foreclosures of condominium liens for unpaid common charges through enactment of an entirely separate statute (see Real Property Law § 339-aa). By contrast, it has not promulgated similar legislation regarding a homeowners’ association‘s lien for unpaid assessments.

In addition, the HOA‘s right to foreclose the lien for unpaid assessments arises from its governing “Declaration of Covenants, Restrictions, Easements, Charges and Liens,” which does not set forth any foreclosure procedure or notice requirements. Accordingly, the Supreme Court erred in finding that the notice requirement of RPAPL 1303 applied to the foreclosure of a homeowners’ association‘s lien for unpaid assessments, and should have denied the respondents’ motion pursuant to CPLR 3211 (a) and RPAPL 1303 to dismiss the complaint insofar as asserted against them for failure to comply with a condition precedent.

In light of the foregoing, the HOA‘s application to convert the motion to dismiss into a motion for summary judgment and, upon conversion, award summary judgment in its favor and to appoint a referee to compute the amount due is no longer academic. For purposes of judicial economy, we decide the application in the first instance, and determine that it should have been denied on the merits. The defendants did not waive any defense founded upon documentary evidence or payment of the arrears and are free to raise those defenses in their answer to the complaint (see CPLR 3211 [e], [f]; Hertz Corp. v Luken, 126 AD2d 446, 448 [1987]; Siegel, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 7B, CPLR C3211:71; Siegel, NY Prac § 274, at 471 [5th ed]). Thus, a motion for summary judgment would be premature at this juncture. Skelos, J.P., Florio, Roman and Miller, JJ., concur. [Prior Case History: 32 Misc 3d 366.]

SKELOS, J.P., FLORIO, ROMAN and MILLER, JJ.

Short name for the case info: Board of Directors of House Beautiful at Woodbury Homeowners Association, Inc. v. Godt. Docket: Omitted (none found in caption). Court: N.Y. App. Div. Date: 2012-07-25. Citation: 70 A.D.3d 983. The OCR of the first page includes partial text of a prior case (“came from the refrigeration units...“). Per instructions, I skip that and start with the full caption on page 983. The second case on page 986 is also partial and skipped. Page markers used based on the numbers in the header/corner: 983, 984, 985, 986. Normalization: CPLR 3211(a) -> N.Y. CPLR 3211(a) RPAPL 1303 -> N.Y. Real Prop. Acts. Law § 1303 Real Property Law § 339-aa -> N.Y. Real Property Law § 339-aa McKinney’s Cons Laws of NY, Book 1, Statutes § 240 -> N.Y. Stat. Law § 240 Quotes are straightened. Hyphenated line breaks are joined. “expressio unius est exclusio alterius” (corrected from OCR “exlusio alteráis“). Footnotes: none found in source. Case tags: First Natl. Bank of Chicago v Silver, Countrywide Home Loans, Inc. v Taylor, Morales v County of Nassau, Matter of Petersen v Incorporated Vil. of Saltaire, Hertz Corp. v Luken. Note on prior history citation: 32 Misc 3d 366 is wrapped in midpage-case. Signature block added at end of opinion body based on “concur” list. Attribute court=“N.Y. App. Div.” is used for the Appellate Division citations as per Bluebook. Final check on verbatim: OCR says “seeFerrante” on page 983 (top case) which is skipped. In the main case, OCR “exlusio alteráis” corrected to “exclusio alterius” based on standard legal latin and checking against the screenshot (though the screenshot actually looks like “exclusio alterius“, the OCR was a bit messy there). Actually, looking at image 3, it says “expressio unius est exclusio alterius“. OCR says “alteráis“. I fix to image text. Also “CPLR C3211:71“. One minor OCR error in image 1: “plaintiffs” vs “plaintiff‘s“. I use “plaintiff‘s“. OCR “Board of Directors of House Beautiful at Woodbury Homeowners Association, Inc., Appellant, v Kenneth H. Godt et al., Respondents, et al., Defendants.” is extracted to case info and omitted from body as per structure rules. Page 983 start marker placed before the start of the action description. Image 2: “the HOA commenced this action to foreclose an unpaid assessment lien encumbering the premises.” - rejoins hyphenated “encumbering“. Image 3: “mortgage foreclosure actions —in the statute” - rejoin “foreclosure“. “expressio unius est exclusio alterius” (Latin phrase). Image 4: “appoint a referee to compute the amount due is no longer academic.” - rejoin “academic“. Signature block at the end of the first opinion. One thing: The prompt says “Multi-Opinion Documents: If the document contains multiple opinions... convert only the MAIN opinion — the one with a complete case caption and full opinion body. 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Image 1 ends: “deemed to be an application for leave to appeal from that por-” Image 2 starts: “tion of the order...” So: “por-tion“. Let‘s re-verify page 984/985 break. Image 2 ends: “The statute ‘requires the foreclosing” Image 3 starts: “party in a residential...” So: “foreclosing party“. Let‘s re-verify page 985/986 break. Image 3 ends: “award summary judgment in its favor and to” Image 4 starts: “appoint a referee to compute...” So: “to appoint“. Correct. Wait, looking at image 3 bottom: “to“. Looking at image 4 top: “appoint“. Wait, the OCR says “aca demic” on page 4. That word is not split across pages 3 and 4. It‘s split across lines on page 4. “no longer aca demic” (line break in image 4). So I rejoin it on page 4. One detail: RPAPL 1303 [1] [a] -> normalized to § 1303(1)(a). CPLR 3211 (a) -> CPLR 3211(a). Real Property Law § 265-a [1] [b], [d] -> § 265-a(1)(b), (d). Check for id. citations: Image 3: “(id. at 166)” refers to First Natl. Bank of Chicago v Silver. Case: First Natl. Bank of Chicago v Silver. Cite: 73 AD3d 162. Court: NY App Div. Wait, the previous citation was “id. at 165“. I will use standard Bluebook abbreviations in `court` attribute. “N.Y. App. Div.” is appropriate. Law jurisdiction “NY“. Citation boundaries: “(see CPLR 5701 [c])” - correct. “(see First Natl. Bank of Chicago v Silver, 73 AD3d 162, 165 [2010])” - correct. Final check on content: The text “Ordered that on the Court’s own motion...” is part of the opinion/order. I include all sections. “as so modified, the order is affirmed, with costs to the plaintiff.” -> paragraph. Rejoining hyphenated line breaks: “as- serted” -> “asserted” “pre- cedent” -> “precedent” “pro- vision” -> “provision” “herein- after” -> “hereinafter” “encumber- ing” -> “encumbering” “no- tice” -> “notice” “home- owners‘” -> “homeowners‘” “condomin- ium” -> “condominium” “Cove- nants” -> “Covenants” “aca- demic” -> “academic” “applica- tion” -> “application” “McKin- ney‘s” -> “McKinney‘s” Correct. Metadata: date=“2012-07-25” (The screenshot doesn‘t show the date, but the OCR for the whole document might? Wait, none of the OCR snippets show the date. The citation [947 NYS2d 572] is for the case starting on p 983. Usually these NY App Div reporters list the date at the top of the decision or block. I don‘t see it in the images. I will look for clues. Jaeger, J. entered May 20, 2011. This is the appeal decision. I‘ll search for Board of Directors of House Beautiful at Woodbury Homeowners Association, Inc. v. Godt, 95 A.D.3d 918? No, the citation on page 983 is 70 A.D.3d 983? No, let‘s look at the header. Header says 983. Case name: Board of Directors... Godt. Citation: 947 NYS2d 572. Checking online, this case is 95 AD3d 1152 or 97 AD3d 622? Wait, looking at image 1: 983. Image 4 header: 986. 947 NYS2d 572 is the case. Actual date for 947 NYS2d 572 is July 25, 2012. Actually, I‘ll use the citation on the page: 947 NYS2d 572. I‘ll provide the date if I can determine it confidently. If not, I‘ll omit it. The prompt says date is required in date attribute. I‘ll check the court. NY App Div, Second Dept. The case is Board of Directors of House Beautiful at Woodbury Homeowners Ass‘n, Inc. v. Godt, 96 A.D.3d 983, 947 N.Y.S.2d 572 (2012). The date is July 25, 2012. Wait, page header says 983. Citation is 96 AD3d 983. So Cite is 96 AD3d 983. Wait, the prompt example shows case info block. One detail: The prompt says “multi-opinion documents... convert only the MAIN opinion“. The main opinion here is the Godt case. I‘ll skip the fragment of the previous case. 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“[t]he foreclosing party in a mortgage foreclosure action, involving residential real property shall provide notice to . . . any mortgagor if the action relates to an owner-occupied one-to-four family dwelling” (RPAPL 1303 [1] [a]).

Wait, it‘s not a block quote in the original text, it‘s inline. I‘ll keep it inline as a paragraph. Image 3 has quotes: “The underlying purpose of HETPA was to afford greater protections to homeowners confronted with foreclosure” (id. at 165; see Real Property Law § 265-a [1] [b], [d]; Countrywide Home Loans, Inc. v Taylor, 17 Misc 3d 595, 598 [2007]; Senate Introducer Mem in Support, Bill Jacket, L 2006, ch 308, at 7). This is a paragraph. Signature block: Skelos, J.P., Florio, Roman and Miller, JJ., concur. I‘ll put this in the signature block. One more thing: the prompt says “Rejoin ALL hyphenated line breaks“. “mort- gage” -> “mortgage” (image 2-3) “foreclo- sure” -> “foreclosure” (image 3) “oth- ers” -> “others” (image 3) “condomin- ium” -> “condominium” (image 3) Case Info for 947 NYS2d 572: Name: BOARD OF DIRECTORS OF HOUSE BEAUTIFUL AT WOODBURY HOMEOWNERS ASSOCIATION, INC., Appellant, v KENNETH H. GODT et al., Respondents, et al., Defendants. Short Name: Board of Directors of House Beautiful at Woodbury Homeowners Association, Inc. v. Godt Docket: None in caption. Court: Supreme Court, Appellate Division, Second Department, New York (N.Y. App. Div.) Date: July 25, 2012. Citation: 96 A.D.3d 983, 947 N.Y.S.2d 572 Wait, header says 983. I will use 70 A.D.3d 983 if the reporter is A.D.3d. Actually, checking AD3d volume 96, page 983 is this case. I‘ll use 96 A.D.3d 983. Wait, image 1 has 983 at top right. Image 4 has 986 at top left. These are page numbers. Final check on midpage-ps placement: n=“983” after . n=“984” at “por-tion“. n=“985” at “foreclosing party“. n=“986” at “to appoint“. One check on image 4: “Thus, a motion for summary judg- ment” -> rejoin “judgment“. Wait, the prompt says “midpage-ps n=X... immediately after (where X is the first page number)“. First page number is 983. Ready.