Opinion
2019-14190, 2020-05154 Index No. 607252/15
05-17-2023
BETHPAGE FEDERAL CREDIT UNION, appellant, v. Timothy HERNON, et al., respondents, et al., defendants.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Leah Lenz of counsel), for appellant. Law Offices of Michael J. Alber, P.C., Huntington Station, NY (Steven Zalewski of counsel), for respondents.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Leah Lenz of counsel), for appellant.
Law Offices of Michael J. Alber, P.C., Huntington Station, NY (Steven Zalewski of counsel), for respondents.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, JOSEPH A. ZAYAS, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated November 4, 2019, and (2) an order of the same court dated March 9, 2020. The order dated November 4, 2019, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Timothy Hernon and Joann Hernon, to strike those defendants’ answer, and for an order of reference. The order dated March 9, 2020, insofar as appealed from, denied that branch of the plaintiff's motion which was for leave to reargue those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendants Timothy Hernon and Joann Hernon, to strike those defendants’ answer, and for an order of reference, and, in effect, denied that branch of the plaintiff's motion which was for leave to renew those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against those defendants, to strike those defendants’ answer, and for an order of reference.
ORDERED that the order dated November 4, 2019, is affirmed insofar as appealed from; and it is further,
ORDERED that the appeal from so much of the order dated March 9, 2020, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated March 9, 2020, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendants Timothy Hernon and Joann Hernon.
In July 2015, the plaintiff commenced this action against, among others, the defendants Timothy Hernon and Joann Hernon (hereinafter together the defendants), inter alia, to foreclose a mortgage on residential property located in Islip. The defendants interposed an answer in which they asserted various affirmative defenses, including that the plaintiff failed to comply with RPAPL 1304.
In March 2019, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference. In an order dated November 4, 2019, the Supreme Court, among other things, denied those branches of the plaintiff's motion, determining that the plaintiff failed to establish that it complied with RPAPL 1304. The plaintiff subsequently moved, inter alia, for leave to renew those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference. In an order dated March 9, 2020, the court, among other things, in effect, denied that branch of the plaintiff's motion which was for leave to renew. The plaintiff appeals from the order dated November 4, 2019, and the order dated March 9, 2020.
"Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Wells Fargo Bank, N.A. v. Yapkowitz, 199 A.D.3d 126, 131–132, 155 N.Y.S.3d 163 [citations and internal quotation marks omitted]). Pursuant to RPAPL 1304(1), "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." " RPAPL 1304(2) requires that the notice be sent 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" ( Caliber Home Loans, Inc. v. Weinstein, 197 A.D.3d 1232, 1236, 153 N.Y.S.3d 575 ).
"A plaintiff demonstrates its compliance with the statute ‘by proof of the requisite mailing, which can be established [by] proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure’ " ( U.S. Bank N.A. v. Pickering–Robinson, 197 A.D.3d 757, 759, 153 N.Y.S.3d 179, quoting Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 21, 98 N.Y.S.3d 273 ; see Caliber Home Loans, Inc. v. Weinstein, 197 A.D.3d at 1236, 153 N.Y.S.3d 575 ). "Evidence of an established and regularly followed office procedure may give rise to a rebuttable presumption that such a notification was mailed to and received by the [intended recipient]" ( CIT Bank N.A. v. Schiffman, 36 N.Y.3d 550, 556, 145 N.Y.S.3d 1, 168 N.E.3d 1138 [citation and internal quotation marks omitted]; see
Federal Natl. Mtge. Assn. v. Raja, 211 A.D.3d 692, 695, 181 N.Y.S.3d 103 ; Wells Fargo Bank, N.A. v. Shields, 201 A.D.3d 1007, 1009, 162 N.Y.S.3d 129 ). " ‘[I]n order for the presumption to arise, [the] office practice must be geared so as to ensure the likelihood that [the] notice ... is always properly addressed and mailed’ " ( CIT Bank N.A. v. Schiffman, 36 N.Y.3d at 556, 145 N.Y.S.3d 1, 168 N.E.3d 1138, quoting Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 830, 414 N.Y.S.2d 117, 386 N.E.2d 1085 ; see Federal Natl. Mtge. Assn. v. Raja, 211 A.D.3d at 695, 181 N.Y.S.3d 103 ; Wells Fargo Bank, N.A. v. Shields, 201 A.D.3d at 1009, 162 N.Y.S.3d 129 ). "Such proof need not be supplied by the employee charged with mailing the document but can be offered in the form of an affidavit of an employee with personal knowledge of the practices utilized by the [company] at the time of the alleged mailing" ( CIT Bank N.A. v. Schiffman, 36 N.Y.3d at 556, 145 N.Y.S.3d 1, 168 N.E.3d 1138 [citation and internal quotation marks omitted]).
Here, an affidavit from William Godfrey, a senior manager of the plaintiff, was insufficient to establish that the RPAPL 1304 notices were properly mailed, because his affidavit did not contain proof of the plaintiff's standard office mailing procedure at the time the RPAPL 1304 notices allegedly were sent (see HSBC Bank USA, N.A. v. Michalczyk, 211 A.D.3d 914, 919, 180 N.Y.S.3d 580 ; Capital One, N.A. v. Liman, 193 A.D.3d 808, 810, 142 N.Y.S.3d 411 ). Although Godfrey averred that loan records reflected that the plaintiff followed its standard practice with respect to mailing the RPAPL 1304 notices, those records were not attached to Godfrey's affidavit, and as such, Godfrey's statements regarding them constitute inadmissible hearsay, lacking probative value (see Deutsche Bank Natl. Trust Co. v. Elshiekh, 179 A.D.3d 1017, 1021, 118 N.Y.S.3d 183 ; JPMorgan Chase Bank, N.A. v. Grennan, 175 A.D.3d 1513, 1517, 109 N.Y.S.3d 436 ). Further, the plaintiff did not provide proof of actual mailing, such as affidavits of mailing or domestic return receipts with attendant signatures. Because the plaintiff "failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304" and, therefore, failed to establish, prima facie, its entitlement to judgment as a matter of law ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 21, 98 N.Y.S.3d 273 ). Accordingly, the Supreme Court properly denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference, regardless of the sufficiency of the defendants’ opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Further, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference. A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" ( CPLR 2221[e][2] ). Contrary to the plaintiff's contention, it did not show that there had been a change in the law so as to warrant renewal of the subject branches of its prior motion (see id. § 2221[e] ; PHH Mtge. Corp. v. Shouela, 210 A.D.3d 815, 816, 178 N.Y.S.3d 161 ).
The parties’ remaining contentions need not be reached in light of our determination.
CONNOLLY, J.P., MALTESE, ZAYAS and TAYLOR, JJ., concur.