Recitation, as required by CPLR 2219(a), of the papers considered in the review of plaintiff’s motion for a declaratory judgment Papers NYSCEF Doc. Notice of Motion, Affirmations, Affidavits and Exhibits Annexed 19-35 Affirmation in Opposition, Affidavits and Exhibits Annexed Reply Affirmation ORDER AND JUDGMENT Upon the foregoing cited papers, the Decision/Order on this application is as follows: In this action, plaintiff seeks entry of a judgment declaring its deed for real property located at 7120 Avenue V, Brooklyn, New York 11234 (Block 8440, Lot 44) void, and for an order discharging said deed from the records of the New York City Register. Connie Miele (“Mortgagor”) originally acquired the property pursuant to a deed dated June 2, 1969 and recorded on June 4, 1969 (NYSCEF Doc. 5).1 On September 11, 2003, she obtained a reverse mortgage from Financial Freedom Senior Funding Corporation, (NYSCEF Doc. 6), who assigned the mortgage to plaintiff, the Secretary of Housing and Urban Development, on August 31, 2011. By notice dated May 6, 2019, Mortgagor was notified by mail (addressed to the property) that she was in default, on the basis that the premises was not her principal place of residence, as she was, at that time, living in a nursing home (NYSCEF Doc. 8), prompting plaintiff to declare all unpaid debt secured by the mortgage immediately due and payable. The notice of default, however, was ineffective as it was not served on the Mortgagor’s court-appointed guardian, Anthony Miele. Mortgagor was found to be an incapacitated person within the meaning of Article 81 of the Mental Hygiene Law and Anthony Miele was appointed as guardian of her person and property on February 23, 2017 (NYSCEF Doc. 11). The notice of default was served on Connie Miele at the property, 7120 Avenue V, Brooklyn, NY 11234, but not upon her guardian, Anthony Miele, who does not reside there. After the notice of default was mailed to the Mortgagor, a copy was recorded against the property, as required by the mortgage, and the property was sold at an auction on the steps of the courthouse to plaintiff as high bidder, in a non-judicial foreclosure sale (NYSCEF Doc. 9) and the deed was executed by the person appointed in the mortgage as “foreclosure commissioner” and recorded on June 11, 2019 (NYSCEF Doc. 10). Plaintiff now moves for a judgment declaring the 2019 deed a nullity and discharging that deed from the records of the City Register on the basis that the notice of default was not properly served on Anthony Miele, rendering the foreclosure sale void. The motion is unopposed2 and none of the defendants, each of whom allegedly has an interest in or lien against the property (see NYSCEF Doc. 23 [complaint]), has answered or otherwise responded to the complaint and the time to do so has expired. Accordingly, it is ORDERED that plaintiff’s motion for a default judgment is granted as against all defendants in the absence of opposition; and it is further ORDERED, ADJUDGED AND DECREED that the deed from Grantor/Seller Lisa Gordon, Foreclosure Commissioner, to Grantee/Buyer Secretary of Housing and Urban Development, dated June 11, 2019, encumbering the real property located at 7120 Avenue V, Brooklyn, New York 11234 (Block 8440, Lot 44), recorded at CRFN 2019000183313 with the New York City Department of Finance, Kings County Office of the City Register, is hereby canceled and discharged of record; and it is further ORDERED, ADJUDGED AND DECREED that the deed from Hugo J. Motroni and Dorothy M. Motroni to Michael J. Miele and Connie Miele, husband and wife, dated June 2, 1969, for the real property located at 7120 Avenue V, Brooklyn, New York 11234 (Block 8440, Lot 44), recorded on June 4, 1969 in Reel 338, Page 192, is restored to full force and effect; and it is ADJUDGED that Connie Miele is the true owner of the property, and it is further ORDERED that upon being served with a certified copy of this order and judgment with notice of entry, the New York City Register, Kings County, is hereby directed to record this judgment and to cancel and to discharge of record the June 11, 2019 deed recorded at CRFN 2019000183313, as ordered and adjudged herein; and it is further ORDERED that the County Clerk of Kings County is directed, upon payment of the proper fees, if any, to discharge a certain Notice of Pendency filed by plaintiff in this action on the 19th day of August, 2019, against property known as Block 8440, Lot 44 and also known as 7120 Avenue V, Brooklyn, New York 11234. This constitutes the decision, order and judgment of the court. Dated: August 21, 2020
