Opinion
12956 Index No. 380951/12 Case No. 2020-00064
01-26-2021
U.S. BANK, N.A., etc., Plaintiff–Respondent, v. William CALHOUN, Defendant–Appellant, Asset Acceptance LLC, et al., Defendants.
Aaron G. Baily, Hawthorne, for appellant. J. Robbin Law PLLC, Armonk (Jacquelyn A. DiCicco of counsel), for respondent.
Aaron G. Baily, Hawthorne, for appellant.
J. Robbin Law PLLC, Armonk (Jacquelyn A. DiCicco of counsel), for respondent.
Gische, J.P., Kern, Moulton, Shulman, JJ.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about October 4, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on its foreclosure complaint as against defendant William Calhoun, unanimously reversed, on the law, with costs, the motion denied, and, upon a search of the record, summary judgment granted to defendant dismissing the complaint as against him, without prejudice. The Clerk is directed to enter judgment accordingly.
Plaintiff failed to establish prima facie its strict compliance with RPAPL 1304 (see HSBC Bank USA v. Rice, 155 A.D.3d 443, 63 N.Y.S.3d 382 [1st Dept. 2017] ). The copy of the certified mail receipt it submitted is undated and blank in other parts, and shows the signature of someone other than defendant. The copy of the pre-paid first-class mail envelope has no recipient's name or address on it. Further, the affidavits plaintiff submitted do not demonstrate the loan servicer's employees' familiarity with the mailing practices and procedures of the servicer that had mailed the 90–day notices and the notice of default.