| Deutsche Bank Natl. Trust Co. v Heitner |
| 2018 NY Slip Op 07090 [165 AD3d 1038] |
| October 24, 2018 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company,Respondent, v Walter Heitner, Jr., Appellant, et al.,Defendants. |
Ballon, Stoll, Bader & Nadler, P.C., New York, NY (Pankaj Malik of counsel), forappellant.
Hogan Lovells US LLP, New York, NY (Suzanne Novak, David Dunn, and Stacey A. Laraof counsel), for respondent.
In an action to foreclose a mortgage, the defendant Walter Heitner, Jr., appeals from an orderof the Supreme Court, Nassau County (Thomas A. Adams, J.), entered March 31, 2015. Theorder denied his motion, inter alia, for summary judgment dismissing the complaint insofar asasserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the motion of the defendant Walter Heitner, Jr., which was for summary judgmentdismissing the complaint insofar as asserted against him is granted, and so much of a subsequentorder of the same court entered September 9, 2015, as, upon reargument, adhered to the orderentered March 31, 2015, is vacated.
In November 2006, the defendant Walter Heitner, Jr. (hereinafter the defendant), and hiswife, the defendant Gail Heitner (hereinafter together the Heitners), executed and delivered toNew Century Mortgage Corporation (hereinafter New Century) a "balloon" note (hereinafter thenote) in the sum of $450,000, which was secured by a mortgage on their home in Wantagh.
The plaintiff, New Century's successor in interest, commenced this action to foreclose themortgage at the end of 2009. In May 2014, the defendant moved, inter alia, for summaryjudgment dismissing the complaint insofar as asserted against him based upon lack of personaljurisdiction, lack of standing, failure to comply with the statutory notice requirements of RPAPL1303 and 1304, and failure to negotiate in good faith pursuant to CPLR 3408 (f). The SupremeCourt denied his motion and the defendant appeals.
We disagree with the Supreme Court's determination to deny that branch of the defendant'smotion which was for summary judgment dismissing the complaint insofar as asserted againsthim. Contrary to the court's determination, the defendant established his prima facie entitlementto judgment as a matter of law by submitting his own affidavit attesting that he had not receivedany notice pursuant to RPAPL 1304 (seeU.S. Bank N.A. v Henry, 157 AD3d 839, 842 [2018]; CitiMortgage, Inc. v Pappas, 147 AD3d900, 902 [2017]; Aurora LoanServs., LLC v Weisblum, 85 AD3d 95, 106 [2011]). In opposition, the plaintiffsubmitted only a copy of the required notice, but failed to submit any evidence that the noticewas mailed in the manner required by the statute. Specifically, the plaintiff did not submit "anaffidavit of service[,] . . . proof of mailing by the post office, evincing [*2]that it properly served the defendant pursuant to RPAPL 1304 [byregistered or certified mail and also by first-class mail to his last known address]"(CitiMortgage, Inc. v Pappas, 147 AD3d at 901 [citations omitted]), or "proof of astandard office mailing procedure designed to ensure that items are properly addressed andmailed, sworn to by someone with personal knowledge of the procedure" (Wells Fargo Bank, NA v Mandrin, 160AD3d 1014, 1016 [2018]). Thus, the plaintiff failed to demonstrate that it strictly compliedwith the requirements of RPAPL 1304, notwithstanding the label on the notice stating "CertifiedArticle Number" and "Senders Record" and listing a 20-digit number on the top of the letter (see Bank of N.Y. Mellon v Zavolunov,157 AD3d 754, 756 [2018]; Citibank, N.A. v Wood, 150 AD3d 813, 814 [2017]). Thus, sincethe plaintiff did not raise a triable issue of fact in opposition to the defendant's prima facieshowing that the plaintiff failed to satisfy the condition precedent of proper service of RPAPL1304 notice upon him, the court should have granted that branch of the defendant's motion whichwas for summary judgment dismissing the complaint insofar as asserted against him on thatground (see CitiMortgage, Inc. v Pappas, 147 AD3d at 902; Aurora Loan Servs., LLCv Weisblum, 85 AD3d at 106).
The parties' remaining contentions have been rendered academic in light of ourdetermination. Rivera, J.P., Miller, Barros and Connolly, JJ., concur.