Page 20 - WCBA CLE 6-14-2022

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commencement of the action.

DISSENT: The plaintiff satisfied the requirements of RPAPL 1304 by mailing the
required statutory default notice to both borrowers, the defendants Fred J. Yapkowitz
and Elaine M. Yapkowitz (hereinafter together the defendants),with both requisite
mailings jointly addressed to each borrower. The language of RPAPL 1304(1) merely
requires lenders to "give" a statutory default notice to the borrower or borrowers.

According to the business records which the Supreme Court found admissible, the
notices were sent to the proper address in one envelope to the borrowers by both
first-class and certified mail. Thus, notice was "given" to not just one of them, but to
both of them, upon the mailings addressed to both spouses as co-borrowers. RPAPL
1304(1) and (2) do not contain any language requiring "separate" parallel notices
addressed to each separate co-borrower. The language enacted by the Legislature,
which our Court is obligated to apply, requires only that the lender, assignee, or
mortgage loan servicers "shall give such notice to the borrower," or if applicable, to the
"borrowers." RPAPL 1304 should not be construed, in its current or former form, to
require separate, duplicative, mailings of notices to co-borrowers residing in the same
household where, as here, the statute is satisfied by joint regular and certified mailings
to both.

MATRIMONIAL:

Fisch v Davidson, 204 AD3d 104 [Mar 9, 2022][Presiding Justice LaSalle, opinion;
Justices Connolly, Iannacci, Wooten concur]:

HOLDING ON APPEAL: the Supreme Court should have granted the defendant's
motion pursuant to CPLR 510 and 511 to change the venue of the matrimonial action
from Suffolk County to New York County. Sheltering in place in a seasonal home
during the Covid-19 crisis does not create a sufficient degree of permanence to
establish residency, thus Suffolk County was not a proper venue for commencement of
the action.

FACTS: The parties were married in 1985 and thereafter moved to New Jersey. Along
with the home in New Jersey, the parties rented an apartment in Manhattan and
eventually purchased an apartment there in 2010. In 2012, the parties purchased
property in Southampton and used this house for summer weekends. Beginning in
2014, the parties’ tax returns showed they resided in New York City. In 2019, the
parties separated. When the COVID-19 pandemic reached New York in March 2020,
the defendant retreated from her Manhattan apartment to the Southampton house. In
August of 2020, the plaintiff commenced this action for divorce and ancillary relief in
Suffolk County and the defendant thereafter moved for change of venue. The Supreme

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