Opinion
4844, 850353/13, 374.
11-14-2017
HSBC BANK USA, etc., Plaintiff–Respondent, v. Paula RICE, Defendant–Appellant, Board of Managers of the 374 Manhattan Condominium, et al., Defendants.
Shaw & Binder, P.C., New York (Daniel S. LoPresti of counsel), for appellant. Hogan Lovells US LLP, New York (Heather R. Gushue of counsel), for respondent.
Shaw & Binder, P.C., New York (Daniel S. LoPresti of counsel), for appellant.
Hogan Lovells US LLP, New York (Heather R. Gushue of counsel), for respondent.
RICHTER, J.P., WEBBER, KERN, MOULTON, JJ.
Order, Supreme Court, New York County (Carol Edmead, J.), entered September 30, 2015, which, among other things, granted plaintiff's motion for summary judgment on its foreclosure complaint and directed a referee to compute the amount due, unanimously reversed, on the law, without costs, plaintiff's motion for summary judgment denied, and, upon a search of the record, summary judgment granted to defendant Paula Rice dismissing the complaint as against her, without prejudice. The Clerk is directed to enter judgment accordingly.
RPAPL 1304 notice "shall be sent by [the] lender, assignee (including purchasing investor) or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage" ( RPAPL 1304[2] ). Proper service of a RPAPL 1304 notice containing the statutorily-mandated content is a condition precedent to the commencement of a foreclosure action, and plaintiff has the burden of establishing its strict compliance with this condition (see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 103, 923 N.Y.S.2d 609 [2d Dept.2011] ).
Plaintiff failed to establish that it strictly complied with RPAPL 1304. Plaintiff submitted an affidavit of its loan servicer, supported by copies of the 90–day notice it alleges was served and a copy of the unsigned, undated return receipt. These documents were insufficient to establish plaintiff's prima facie entitlement to summary judgment. In the affidavit, the loan servicer's vice president of loan documentation fails to demonstrate a familiarity with the servicer's mailing practices and procedures. Therefore, plaintiff did not establish proof of a standard office practice and procedure (see Wells Fargo Bank, N.A. v. Lewczuk, 153 A.D.3d 890, 61 N.Y.S.3d 244 [2d Dept.2017] ; Wells Fargo Bank, N.A. v. Trupia, 150 A.D.3d 1049, 55 N.Y.S.3d 134 [2d Dept.2017] ). Moreover, portions of the receipt in the record are blank, and an undated and unsigned return receipt is not sufficient to establish proof of the actual mailing (see Wells Fargo v. Trupia at 1051, 55 N.Y.S.3d 134 ; see also Investors Sav. Bank v. Salas, 152 A.D.3d 752, 58 N.Y.S.3d 600 [2d Dept.2017] ).
In light of the foregoing, we need not reach defendant's remaining contentions.