| CitiMortgage, Inc. v Pappas |
| 2017 NY Slip Op 01177 [147 AD3d 900] |
| February 15, 2017 |
| Appellate Division, Second Department |
[*1]
| CitiMortgage, Inc., Successor by Merger to CitiFinancialMortgage Company, Inc., 1000 Technology Drive, O'Fallon, MO 63368-2240,Appellant, v Eva Pappas, Respondent, et al., Defendant. |
Akerman LLP, New York, NY (Jordan Smith and Kathleen R. Fitzpatrick of counsel), forappellant.
Harvey Sorid, Uniondale, NY, for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Suffolk County (Spinner, J.), dated February 27, 2015, which denied its motion, inter alia,for summary judgment on the complaint and granted the cross motion of the defendant EvaPappas for summary judgment dismissing the complaint insofar as asserted against her.
Ordered that the order is affirmed, with costs.
In 2011, the plaintiff commenced this mortgage foreclosure action against, among others, thedefendant Eva Pappas (hereinafter the defendant). In its complaint, the plaintiff alleged, amongother things, that, upon information and belief, it complied with RPAPL 1304. The defendanttimely interposed an answer denying the material allegations in the complaint and assertingaffirmative defenses, including that the plaintiff failed to serve a proper notice pursuant toRPAPL 1304. The plaintiff moved, inter alia, for summary judgment on the complaint and for anorder of reference. The defendant cross-moved for summary judgment dismissing the complaintinsofar as asserted against her, arguing, inter alia, that the plaintiff failed to comply with RPAPL1304. The Supreme Court denied the plaintiff's motion and granted the defendant's cross motion.The plaintiff appeals.
The Supreme Court properly determined that the plaintiff failed to establish, prima facie, thatit strictly complied with the 90-day notice required by RPAPL 1304. In support of its motion, theplaintiff relied upon the affidavit of Adam Gantner, a "Business Operations Analyst" employedby the plaintiff, and certain business records attached thereto. Gantner averred that he hadpersonal knowledge of the facts contained in his affidavit by reason of his familiarity with"certain" practices and procedures of the plaintiff, in particular "certain systems of record"utilized by the plaintiff to maintain, record, and create information related to the residentialmortgage loans that the plaintiff services, and "the process by which employees of [the plaintiff]enter information in those systems." Referring to certain records, Gantner averred that onSeptember 8, 2010, the plaintiff mailed to the defendant, by first-class and certified mail, a noticepursuant to RPAPL 1304. A copy of the RPAPL 1304 notice was attached to Gantner's affidavit,and an attached computer record shows entries relating to "NEW YORK 90 DAY NOTICECERT—9/08/10" and "NEW YORK 90 DAY NOTICE REGMAIL—9/08/10."
[*2] "[P]roper service ofRPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencementof a foreclosure action, and the plaintiff has the burden of establishing satisfaction of thiscondition" (Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95, 106 [2011]; see Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910[2013]). The statute requires that such notice be sent by registered or certified mail, and also byfirst-class mail, to the last known address of the borrower (see RPAPL 1304 [2]). Byrequiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered orcertified mail and also by first-class mail, the legislature implicitly provided the means for theplaintiff to demonstrate its compliance with the statute, i.e., by submission of the proof ofmailing by the post office.
Here, the plaintiff failed to submit an affidavit of service (see Bank of N.Y. Mellon v Aquino, 131 AD3d 1186, 1186 [2015];Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d at 910) or proof of mailing by thepost office, evincing that it properly served the defendant pursuant to RPAPL 1304. Contrary tothe plaintiff's contention, Gantner's affidavit and attached business records were not sufficient toestablish that the notices were sent to the defendant in the manner required by RPAPL 1304.While mailing may be proved by documents meeting the requirements of the business recordsexception to the rule against hearsay under CPLR 4518 (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d498, 508 [2015]; Lindsay vPasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 793[2015]; Nocella v Fort Dearborn LifeIns. Co. of N.Y., 99 AD3d 877 [2012]), here, Gantner did not aver that he was familiarwith the plaintiff's mailing practices and procedures, and therefore did not establish proof of astandard office practice and procedure designed to ensure that items are properly addressed andmailed (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129AD3d at 793; Nocella v Fort DearbornLife Ins. Co. of N.Y., 99 AD3d 877 [2012]). Therefore, Gantner's unsubstantiated andconclusory statements were insufficient to establish that the 90-day notice required by RPAPL1304 was mailed to the defendant by first-class and certified mail (see Cenlar, FSB v Weisz, 136 AD3d855, 856 [2016]; cf. Flagstar Bank,FSB v Mendoza, 139 AD3d 898, 900 [2016]; Citimortgage, Inc. v Espinal, 134 AD3d 876, 878 [2015]).Accordingly, the Supreme Court properly denied the plaintiff's motion for summaryjudgment.
On her cross motion, the defendant established her prima facie entitlement to judgment as amatter of law dismissing the complaint insofar as asserted against her by relying upon the sameevidence, further supported by her own affidavit attesting that she did not receive any RPAPL1304 notice (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106). The plaintiffdid not rebut this showing, and thus, the Supreme Court properly granted the defendant's crossmotion.
In light of our determination, we need not reach the parties' remaining contentions.Leventhal, J.P., Sgroi, LaSalle and Barros, JJ., concur.