| Citimortgage, Inc. v Banks |
| 2017 NY Slip Op 08257 [155 AD3d 936] |
| November 22, 2017 |
| Appellate Division, Second Department |
[*1]
| Citimortgage, Inc., Respondent, v Michael C. Banks etal., Appellants, et al., Defendants. |
John C. Schnaufer, Esq., LLC, Hartsdale, NY, for appellants.
Akerman, LLP, New York, NY (Ashley S. Miller of counsel), for respondent.
Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), datedJanuary 21, 2016. The order, insofar as appealed from, granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted against thedefendants Michael C. Banks and Tyra Banks, to strike their answer, and for an order ofreference.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against, among others, the defendants Michael C. Banksand Tyra Banks (hereinafter together the defendants) to foreclose a mortgage. In their answer, thedefendants asserted several affirmative defenses, including that the plaintiff failed to comply withRPAPL 1304. The plaintiff moved, inter alia, for summary judgment on the complaint insofar asasserted against the defendants, to strike their answer, and for an order of reference. Thedefendants opposed the motion on the ground that the plaintiff failed to demonstrate itscompliance with RPAPL 1304. By order dated January 21, 2016, the Supreme Court, inter alia,granted the plaintiff's motion. The defendants appeal.
RPAPL 1304 (1), which applies to residential foreclosure actions, provides that, "at leastninety days before a lender, an assignee or a mortgage loan servicer commences legal actionagainst the borrower, . . . including mortgage foreclosure, such lender, assignee ormortgage loan servicer shall give notice to the borrower." The statute sets forth the requirementsfor the content of such notice and provides that such notice must be sent by registered or certifiedmail and also by first-class mail to the last known address of the borrower (see RPAPL1304 [2]). "[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 Citibank, N.A. v Wood, 150AD3d 813, 814 [2017]; FlagstarBank, FSB v Damaro, 145 AD3d 858, 860 [2016]; Flushing Sav. Bank v Latham, 139 AD3d 663, 665 [2016]; Deutsche Bank Natl. Trust Co. vSpanos, 102 AD3d 909, 910 [2013]).
Here, contrary to the defendants' contentions, the plaintiff established, prima facie, [*2]the absence of triable issues of fact as to whether it strictlycomplied with the requirements of RPAPL 1304. The plaintiff submitted proof of mailing by thepost office demonstrating that it properly served the defendants with the notices by certified mail.The plaintiff submitted an affidavit by its vice president of document control, attaching a copy ofits 90-day notice and its business records demonstrating its standard office mailing procedure andshowing that the notices were mailed to the defendants by certified and regular mail inaccordance with its standard office mailing procedure (see Flagstar Bank, FSB v Mendoza, 139 AD3d 898, 900 [2016]; cf. Wells Fargo Bank, N.A. v Trupia,150 AD3d 1049, 1050 [2017]; Citibank, N.A. v Wood, 150 AD3d 813, 814 [2017]). In opposition,the defendants failed to raise a triable issue of fact.
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against the defendants, tostrike their answer, and for an order of reference. Balkin, J.P., Maltese, Barros and Connolly, JJ.,concur.