In Pritchard v. Curtis, 101 AD3d 1502, 957 NYS2d 440, 2012 WL 6699001 [3d Dept 2012], the Third Department acknowledged the Second Department's holdings in Aurora Loan Servs., LLC v. Weisblum and First Natl. Bank of Chicago v. Silver that satisfaction of the notice requirements imposed by RPAPL 1303 and 1304 was a condition precedent to the action and that the failure to comply with either could be raised at any time.
However, the Pritchard Court emphasized that the Second Department did not "label these conditions precedent as jurisdictional" (see Pritchard v. Curtis 101 AD3d 1502, 1504 ).
The Pritchard Court concluded that the notice conditions of these statutes constitute defenses to the foreclosure action as evidenced by the legislature's denomination of the RPAPL 1304 notice condition as a defense to foreclosure in RPAPL 1302 (2).
The Court in Pritchard went on to hold that the application to vacate the judgment pursuant to CPLR 5015 (a) (4) by a defendant who had appeared without raising the notice condition failure prior to the granting of such judgment was one resting upon subject matter jurisdictional grounds rather than on grounds of personal jurisdiction. As such, it was properly denied by the trial court because "the absence of these conditions precedent did not deprive the court of jurisdiction to preside over this mortgage foreclosure action" (id. at 1505).