WHEN A JUDGMENT IS ISSUED BASED ON AN IMPROPERLY SERVED MOTION

MTGLQ Invs., L.P. v White, 2020 NY Slip Op 00269, Decided on January 15, 2020, Appellate Division, Second Department:

"In October 2014, Ocwen moved, inter alia, for summary judgment on the complaint insofar as asserted against White, to strike his answer, and for an order of reference (hereinafter the summary judgment motion). By order dated June 25, 2015, the Supreme Court granted the unopposed summary judgment motion. In April 2017, following additional assignments of the mortgage, the new holder, MTGLQ Investors, L.P. (hereinafter the plaintiff), moved, inter alia, for a judgment of foreclosure and sale. White opposed the motion, asserting, inter alia, that he never received the summary judgment motion. The court granted the motion and entered an order and judgment of foreclosure and sale on October 25, 2017. White appeals.

"The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void" (Citimortgage, Inc. v Reese, 162 AD3d 847, 848; see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907; Nationstar Mtge., LLC v Chase, 147 AD3d 964, 965). White's opposition to the plaintiff's motion, inter alia, for a judgment of foreclosure and sale included his attorney's affirmation, wherein his attorney stated that the attorney never received the summary judgment motion. In reply, the plaintiff did not submit an affidavit of service or other proof of service demonstrating that the summary judgment motion had been served on White's counsel. The plaintiff's assertions are insufficient to raise a presumption that White was served with the summary judgment motion (see Davis v New York City Hous. Auth., 172 AD3d 815, 817, Berkowitz v Tolentino, 94 AD3d 797, 797; Bonik v Tarrabocchia, 78 AD3d 630, 632; cf. Tsikotis v Pioneer Bldg. Corp., 96 AD3d 936, 936). At the time White's attorney brought to the Supreme Court's attention that the attorney had not received the motion for summary judgment and, in response, the plaintiff failed to submit any proof of service of the motion, the court was presented with evidence that the order dated June 25, 2015, was a nullity (see Prudence v Wright, 94 AD3d 1073, 1074). Under such circumstances, there was never a default in opposing the motion for summary judgment, and thus, there was no need for White to demonstrate a reasonable excuse or a potentially meritorious opposition to the motion (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d at 907). Accordingly, the Supreme Court should have denied the plaintiff's motion, inter alia, for a judgment of foreclosure and sale and vacated so much of the order dated June 25, 2015, as granted the summary judgment motion (see Citimortgage, Inc. v Reese, 162 AD3d at 848; Wells Fargo Bank, N.A. v Whitelock, 154 AD3d at 907; Nationstar Mtge., LLC v Chase, 147 AD3d at 965)."