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HSBC Bank USA v. Gifford

Appellate Division of the Supreme Court of the State of New York
May 24, 2018
161 A.D.3d 618 (N.Y. App. Div. 2018)

Opinion

6646 Index 35004/13E

05-24-2018

HSBC BANK USA, National E Association, etc., Plaintiff–Respondent, v. David GIFFORD, Defendant–Appellant, Mortgage Electronic Registration Systems, Inc., etc., et al., Defendants.

Michael Kennedy Karlson, New York, for appellant. Sanselands Eyet, LLP, New York (Lauren P. Chirch of counsel), for respondent.


Michael Kennedy Karlson, New York, for appellant.

Sanselands Eyet, LLP, New York (Lauren P. Chirch of counsel), for respondent.

Friedman, J.P., Gische, Andrias, Kern, Oing, JJ.

Judgment of foreclosure and sale, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about March 22, 2017, and bringing up for review an order, same court (Lizbeth Gonzalez, J.), entered on or about June 6, 2016, which granted plaintiff's motion for summary judgment, unanimously reversed, on the law, without costs, the judgment vacated and, upon a search of the record, summary judgment dismissing the complaint as against defendant Gifford granted without prejudice. The Clerk is directed to enter judgment accordingly.

We reject defendant's contentions that plaintiff's proof of standing was insufficient and that the contents of its notice of default and 90–day notice pursuant to Real Property Actions and Proceedings Law § 1304 failed to comply with the mortgage and the statute. However, we find that plaintiff failed to carry its burden of proving proper service of the notice of default, which is a condition precedent to the commencement of a foreclosure action ( RPAPL 1304[3] ). The affidavit of mailing, by a person who did not personally do the mailing but relied on his knowledge of his employer's office practices, does not demonstrate the affiant's familiarity with his employer's mailing practices and procedures with respect to notices of default (see Nationstar Mtge., LLC v. Cogen, 159 A.D.3d 428, 72 N.Y.S.3d 48 [1st Dept. 2018] ; U.S. Bank N.A. v. Brjimohan, 153 A.D.3d 1164, 62 N.Y.S.3d 43 [1st Dept. 2017] ).


Summaries of

HSBC Bank USA v. Gifford

Appellate Division of the Supreme Court of the State of New York
May 24, 2018
161 A.D.3d 618 (N.Y. App. Div. 2018)
Case details for

HSBC Bank USA v. Gifford

Case Details

Full title:HSBC Bank USA, National Association, etc., Plaintiff-Respondent, v. David…

Court:Appellate Division of the Supreme Court of the State of New York

Date published: May 24, 2018

Citations

161 A.D.3d 618 (N.Y. App. Div. 2018)
161 A.D.3d 618
2018 N.Y. Slip Op. 3738

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