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FIRST NATL. BANK v. SILVER

2008-09982

73 A.D.3d 162 (2010)

899 N.Y.S.2d 256

FIRST NATIONAL BANK OF CHICAGO, Respondent, v. ALVIN SILVER et al., Appellants, et al., Defendant.

Appellate Division of the Supreme Court of New York, Second Department.

Decided March 23, 2010.

Attorney(s) appearing for the Case

Smith, Buss & Jacobs, LLP, Yonkers ( Jeffrey D. Buss of counsel), for appellants.

Zavatsky Mendelsohn & Levy, LLP, Syosset ( John Tangel of counsel), for respondent.

DILLON, J.P., BALKIN and LEVENTHAL, JJ., concur.

OPINION OF THE COURT

FLORIO, J.

In this matter we are asked to determine an issue of first impression at the appellate level, that is, whether the failure to comply with notice requirements of the Home Equity Theft Prevention Act (Real Property Law § 265-a [hereinafter HETPA]) must be raised as an affirmative defense or whether it can be raised at any time during an action. We hold that it can be raised at any time and, therefore, reverse, insofar as...

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