| Wells Fargo Bank, N.A. v Trupia |
| 2017 NY Slip Op 03986 [150 AD3d 1049] |
| May 17, 2017 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., as Successor by Merger to WachoviaMortgage, FSB, Formerly Known as World Savings, FSB, Respondent, v Maria Trupia,Appellant. |
Zinker & Herzberg, LLP, Hauppauge, NY (Jeffrey Herzberg of counsel), forappellant.
Woods Oviatt Gilman LLP, Rochester, NY (Frances M. Kabat and Richard Mullen ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant appeals, as limited by her brief, from (1)stated portions of an order of the Supreme Court, Suffolk County (Whelan, J.), dated April 27,2015, and (2) so much of an order of the same court, also dated April 27, 2015, as granted thosebranches of the plaintiff's motion which were for summary judgment on the complaint, to strikeher answer, and for an order of reference, and appointed a referee to compute the amount due onthe mortgage loan.
Ordered that the appeal from the first order dated April 27, 2015, is dismissed, as theportions of the first order appealed from were superseded by the second order dated April 27,2015; and it is further,
Ordered that the second order dated April 27, 2015, is reversed insofar as appealed from, onthe law, those branches of the plaintiff's motion which were for summary judgment on thecomplaint, to strike the defendant's answer, and for an order of reference are denied, and so muchof the first order dated April 27, 2015, as also granted those branches of the plaintiff's motion isvacated; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff commenced this action against the defendant to foreclose a mortgage onresidential property located in Mattituck. The plaintiff alleged, among other things, that thedefendant defaulted on her mortgage obligation, and that, upon information and belief, itcomplied with RPAPL 1304. Thereafter, the plaintiff moved, inter alia, for summary judgmenton the complaint. In opposition, the defendant asserted that the plaintiff failed to properly servethe required 90-day notice in accordance with RPAPL 1304. In an order dated April 27, 2015, theSupreme Court granted the plaintiff's motion, inter alia, for summary judgment on the complaint,[*2]to strike her answer, and for an order of reference. In anotherorder also dated April 27, 2015, the court granted the plaintiff's motion and appointed a referee tocompute the amount due on the mortgage loan. We reverse insofar as appealed from.
"[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a conditionprecedent to the commencement of a foreclosure action, and the plaintiff has the burden ofestablishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011];see CitiMortgage, Inc. v Pappas,147 AD3d 900 [2017]; DeutscheBank Natl. Trust Co. v Spanos, 102 AD3d 909, 910 [2013]). The statute requires thatsuch notice must be sent by registered or certified mail, and also by first-class mail, to the lastknown address of the borrower (see RPAPL 1304 [2]). By requiring the lender ormortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also byfirst-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate itscompliance with the statute, i.e., by submission of proof of mailing by the post office (see CitiMortgage, Inc. v Pappas, 147AD3d 900 [2017]).
Here, the plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304(see Hudson City Sav. Bank vDePasquale, 113 AD3d 595, 596 [2014]). In support of its motion, the plaintiffsubmitted the affidavit of Monica I. Montalvo Rivas, its vice president of loan documentation,stating that she had "reviewed the 90 day pre-foreclosure notice sent to Borrower on October 31,2013 to the last known address of Borrower, which is the residence that is [the] subject of theMortgage, by first class mail and certified mail." Annexed to Rivas's affidavit was a copy of thenotice, along with a copy of a "Certified Mail Receipt" containing the defendant's address and a"Certified Mail Number." The receipt contained no language indicating that it was issued by theUnited States Postal Service. "While mailing may be proved by documents meeting therequirements of the business records exception to the rule against hearsay," here, Rivas did notaver that she was familiar with the plaintiff's mailing practices and procedures, and therefore didnot establish proof of a standard office practice and procedure designed to ensure that items areproperly addressed and mailed (see CitiMortgage, Inc. v Pappas, 147 AD3d at 901). Inany event, the plaintiff failed to submit any proof substantiating Rivas's assertion that the noticewas mailed to the defendant by first class mail.
Accordingly, since the plaintiff failed to establish, prima facie, that it strictly complied withRPAPL 1304, the Supreme Court should have denied those branches of the plaintiff's motionwhich were for summary judgment on the complaint, to strike the defendant's answer, and for anorder of reference (see Deutsche BankNatl. Trust Co. v Cunningham, 142 AD3d 634, 636 [2016]; Bank of N.Y. Mellon v Aquino, 131AD3d 1186, 1186-1187 [2015]; Wells Fargo Bank, NA v Burke, 125 AD3d 765, 767 [2015]).
The defendant's remaining contentions need not be reached in light of our determination.Mastro, J.P., Sgroi, LaSalle and Connolly, JJ., concur. [Prior Case History: 2015 NY Slip Op31062(U).]