| Bank of N.Y. Mellon v Zavolunov |
| 2018 NY Slip Op 00271 [157 AD3d 754] |
| January 17, 2018 |
| Appellate Division, Second Department |
[*1]
| The Bank of New York Mellon, Formerly Known as The Bankof New York, as Trustee for the Certificateholders of CWMBS, Inc., CHL MortgagePass-Through Trust 2007-HY7, Mortgage Pass through Certificates, Series 2007-HY7,Respondent, v Eleanor Zavolunov, Appellant, et al., Defendants. |
Biolsi Law Group, P.C., New York, NY (Steven A. Biolsi and Juan Paolo F. Dizon ofcounsel), for appellant.
Stern & Eisenberg, P.C., Depew, NY (Margaret J. Cascino and Nicole M. Falcey ofcounsel), for respondent.
Appeal from an order of the Supreme Court, Kings County (Graham, J.), entered December21, 2015. The order, insofar as appealed from, granted those branches of the plaintiff's motionwhich were to extend the time to move for summary judgment, for summary judgment on thecomplaint insofar as asserted against the defendant Eleanor Zavolunov, and for an order ofreference.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the plaintiff's motion which were for summary judgment on the complaintinsofar as asserted against the defendant Eleanor Zavolunov and for an order of reference, andsubstituting therefor a provision denying those branches of the motion; as so modified, the orderis affirmed insofar as appealed from, with costs to the defendant Eleanor Zavolunov.
The plaintiff commenced this action against the defendant Eleanor Zavolunov (hereinafterthe defendant), among others, to foreclose a mortgage on certain real property in Brooklyn. Thedefendant interposed an answer asserting various affirmative defenses, including lack ofstanding. Thereafter, the plaintiff moved, inter alia, for an extension of time to move forsummary judgment, for summary judgment on the complaint insofar as asserted against thedefendant, and for an order of reference. The defendant opposed the motion, arguing that themotion was untimely under Uniform Civil Term Rules of the Supreme Court, Kings County, PartC, rule 6. The defendant asserted, in the alternative, that the plaintiff failed to eliminate triableissues of fact as to its standing to commence the action, and failed to demonstrate its strictcompliance with RPAPL 1304. The Supreme Court, inter alia, granted those branches of theplaintiff's motion, and the defendant appeals.
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in granting that branch of the plaintiff's motion which was to extend the time to movefor summary judgment, as the plaintiff demonstrated good cause for making the motion morethan 60 days after the filing of the note of issue, as required by Uniform Civil Term Rules of theSupreme Court, Kings County, Part C, rule 6 (see Popalardo v Marino, 83 AD3d 1029, 1030 [2011]; Ramos v Triboro Coach Corp., 31AD3d 625 [2006]; see alsoDeFilippo v Miller, 106 AD3d 770 [2013]).
Nevertheless, the Supreme Court erred in granting those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against the defendant andfor an order of reference. "Generally, in moving for summary judgment in an action to foreclose amortgage, a plaintiff establishes its prima facie case through the production of the mortgage, theunpaid note, and evidence of default" (Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689 [2014]; see Deutsche Bank Natl. Trust Co. vBrewton, 142 AD3d 683, 684 [2016]). Furthermore, where the plaintiff in a residentialforeclosure action alleges in its complaint that it has served an RPAPL 1304 notice on theborrowers, a plaintiff moving for summary judgment must "prove its allegation by tenderingsufficient evidence demonstrating the absence of material issues as to its strict compliance withRPAPL 1304" (Aurora Loan Servs.,LLC v Weisblum, 85 AD3d 95, 106 [2011]).
RPAPL 1304 (1), which applies to home loans, provides that "at least ninety days before alender, an assignee or a mortgage loan servicer commences legal action against the borrower. . . including mortgage foreclosure, such lender, assignee or mortgage loan servicershall give notice to the borrower." The statute sets forth the requirements for the content of suchnotice (see id.), and provides that such notice must be sent by registered or certified mailand by first-class mail to the last known address of the borrower and to the subject residence(see RPAPL 1304 [2]). "[P]roper service of RPAPL 1304 notice on the borrower orborrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiffhas the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC vWeisblum, 85 AD3d at 106; seeCitibank, N.A. v Wood, 150 AD3d 813, 814 [2017]; Flagstar Bank, FSB v Damaro, 145 AD3d 858, 860 [2016]).
Here, the plaintiff failed to establish, prima facie, that it complied with the requirements ofRPAPL 1304 (see M&T Bank vJoseph, 152 AD3d 579 [2017]; CitiMortgage, Inc. v Pappas, 147 AD3d 900 [2017]; Bank of N.Y. Mellon v Aquino, 131AD3d 1186, 1186 [2015]; DeutscheBank Natl. Trust Co. v Spanos, 102 AD3d 909, 910 [2013]). In moving for summaryjudgment, the plaintiff submitted the affidavit of Jason Ussery, a representative of its loanservicer, who stated that "[a]t least 90 days prior to the commencement of the action, notice wassent to Defendant by certified mail and first class mail to the last known address of the Defendantand, if different, to the residence that is the subject of the mortgage." Ussery annexed copies ofthe 90-day notices mailed to the defendant, all of which contained a bar code with a 20-digitnumber below it, but no language indicating that a mailing was done by first-class or certifiedmail, or even that a mailing was done by the U.S. Postal Service (see Wells Fargo Bank, N.A. v Trupia,150 AD3d 1049 [2017]). Moreover, Ussery did not make the requisite showing that he wasfamiliar with the plaintiff's mailing practices and procedures, and therefore did not establish"proof of a standard office practice and procedure designed to ensure that items are properlyaddressed and mailed" (id. at 1050-1051; see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890 [2017]; Citibank, N.A. v Wood, 150 AD3d813 [2017]; CitiMortgage, Inc. v Pappas, 147 AD3d at 901).
Since the plaintiff failed to establish, prima facie, that it complied with the requirements ofRPAPL 1304, the Supreme Court should have denied those branches of its motion which werefor summary judgment on the complaint insofar as asserted against the defendant and for anorder of reference, regardless of the sufficiency of the opposing papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Chambers, J.P., Cohen, Barros andChristopher, JJ., concur.