Opinion
2020–08088 Index No. 3203/17
06-28-2023
MTGLQ INVESTORS, L.P., appellant, v. Antonia CACIOPPO, respondent, et al., defendants.
Friedman Vartolo, LLP, New York, NY (Zachary Gold of counsel), for appellant. Joseph, Terracciano & Lynam, LLP, Syosset, NY (Janine T. Lynam and James N. Joseph of counsel), for respondent.
Friedman Vartolo, LLP, New York, NY (Zachary Gold of counsel), for appellant.
Joseph, Terracciano & Lynam, LLP, Syosset, NY (Janine T. Lynam and James N. Joseph of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered February 11, 2020. The order denied the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendant Antonia Cacioppo, to strike that defendant's answer, and for an order of reference, and granted that defendant's cross-motion, in effect, for summary judgment dismissing the complaint insofar as asserted against her.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the cross-motion of the defendant Antonia Cacioppo, in effect, for summary judgment dismissing the complaint insofar as asserted against her, and substituting therefor a provision denying the cross-motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff commenced this action against the defendant Antonia Cacioppo (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real property located in Seaford. Thereafter, the plaintiff moved for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. The defendant opposed the motion and cross-moved, in effect, for summary judgment dismissing the complaint insofar as asserted against her based on the plaintiff's failure to comply with RPAPL 1304. By order dated February 10, 2020, the Supreme Court denied the plaintiff's motion and granted the defendant's cross-motion. The plaintiff appeals.
Proper service of a RPAPL 1304 notice on 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 (see Wells Fargo Bank, N.A. v. McMahon, 202 A.D.3d 886, 887, 158 N.Y.S.3d 877 ; Deutsche Bank Natl. Trust Co. v. Starr, 173 A.D.3d 836, 837, 104 N.Y.S.3d 643 ). The statute requires that, at least 90 days before commencement of a residential foreclosure action, the lender, assignee or mortgage loan servicer must send the notice by registered or certified mail, and also by first-class mail, to the last known address of the borrower (see RPAPL 1304[1], [2] ). Compliance with these requirements can be "established with 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" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 21, 98 N.Y.S.3d 273 [internal quotation marks omitted]; see CIT Bank N.A. v. Schiffman, 36 N.Y.3d 550, 556, 145 N.Y.S.3d 1, 168 N.E.3d 1138 ; Prof–2014–S2 Legal Title Trust II v. DeMarco, 205 A.D.3d 943, 945, 166 N.Y.S.3d 564 ).
Here, the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. The plaintiff submitted a detailed affidavit of mailing from an assistant secretary of loan documentation at Rushmore Loan Management Services, LLC (hereinafter Rushmore), which demonstrated that the RPAPL 1304 notices had been mailed in accordance with the statute (see RPAPL 1304[2] ; Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 21, 98 N.Y.S.3d 273 ). However, this affidavit failed to demonstrate that Rushmore had the authority to service the loan at the time that it mailed the RPAPL 1304 notices to the defendant (cf. HSBC Bank USA, N.A. v. Bermudez, 175 A.D.3d 667, 670–671, 107 N.Y.S.3d 138 ), and this record presents triable issues of fact as to whether Rushmore had this authority. Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendant Antonia Cacioppo, to strike that defendant's answer, and for an order of reference.
However, the Supreme Court should have denied the defendant's cross-motion, in effect, for summary judgment dismissing the complaint insofar as asserted against her based on the plaintiff's alleged failure to comply with RPAPL 1304 (see Nationstar Mtg., LLC v. Matles, 185 A.D.3d 703, 127 N.Y.S.3d 135 ). The defendant's bare denial of receipt of the RPAPL 1304 notice was insufficient to establish her prima facie entitlement to judgment as a matter of law (see Everhome Mtge. Co. v. Aber, 195 A.D.3d 682, 688, 151 N.Y.S.3d 55, affd 39 N.Y.3d 949, 178 N.Y.S.3d 8, 198 N.E.3d 1289 ), and she " ‘did not carry [her] burden in moving for summary judgment by pointing to the gaps in the plaintiff's proof’ " ( Bank of N.Y. Mellon v. Basta, 205 A.D.3d 664, 666, 165 N.Y.S.3d 715, quoting Wells Fargo Bank, N.A. v. DeFeo, 200 A.D.3d 1105, 1106, 161 N.Y.S.3d 218 ; see JPMorgan Chase Bank, N.A. v. Gold, 188 A.D.3d 1019, 1022, 136 N.Y.S.3d 380 ).
CONNOLLY, J.P., MILLER, CHRISTOPHER and TAYLOR, JJ., concur.