Here, although the plaintiff came forward with evidence establishing that the note was assigned to it and establishing the note's terms, the affidavit of lost note submitted in support of its motion failed to establish the facts that prevent the production of the original note (see UCC 3–804 ; Deutsche Bank Natl. Trust Co. v. Anderson, 161 A.D.3d 1043, 1044–1045, 79 N.Y.S.3d 42 ; U.S. Bank N.A. v. Richards, 155 A.D.3d 522, 524, 65 N.Y.S.3d 178 ; Marrazzo v. Piccolo, 163 A.D.2d 369, 558 N.Y.S.2d 103 ; see alsoNew York Community Bank v. Jennings, 2015 N.Y. Slip Op. 31591[U], *4–5, 2015 WL 5062168 [Sup. Ct., Queens County] ). Additionally, we note that Riley's out-of-state affidavit lacked a certificate of conformity as required by CPLR 2309(c), although such defect by itself would not be fatal to the plaintiff's motion (seeBank of N.Y. Mellon v. Vytalingam, 144 A.D.3d 1070, 1071, 42 N.Y.S.3d 274 ).
The party seeking to enforce a lost instrument is required to "account for its absence" ( UCC 3–804, Official Comment). Here, although the plaintiff came forward with evidence establishing that the note was assigned to it and establishing the note's terms, the affidavit of lost note submitted in support of its motion failed establish the facts that prevent the production of the original note (see UCC 3–804 ; Deutsche Bank Natl. Trust Co. v. Anderson, 161 A.D.3d 1043, 1044–1045, 79 N.Y.S.3d 42 ; U.S. Bank N.A. v. Richards, 155 A.D.3d 522, 524, 65 N.Y.S.3d 178 ; Marrazzo v. Piccolo, 163 A.D.2d 369, 558 N.Y.S.2d 103 ; see alsoNew York Community Bank v. Jennings, 2015 N.Y. Slip Op 31591[U], 2015 WL 5062168, *4–5 [Sup Ct, Queens County] ). Additionally, we note that Riley's out-of-state affidavit lacked a certificate of conformity as required by CPLR 2309(c), although such defect by itself would not be fatal to the plaintiff's motion (seeBank of N.Y. Mellon v. Vytalingam, 144 A.D.3d 1070, 1071, 42 N.Y.S.3d 274 ).
Pursuant to UCC 3–804, which is intended to provide a method of recovery on instruments that are lost, destroyed, or stolen, a plaintiff is required to submit "due proof of [the plaintiff's] ownership, the facts which prevent [its] production of [the note,] and its terms" ( UCC 3–804 ; seeWeiss v. Phillips, 157 A.D.3d 1, 65 N.Y.S.3d 147 ; US Bank N.A. v. Richards, 155 A.D.3d 522, 65 N.Y.S.3d 178 ). Here, the Supreme Court properly concluded that, although the plaintiff was unable to produce the note, a copy of the note submitted by the plaintiff provided sufficient evidence of its terms (seeN.Y. Community Bank v. Jennings, 2015 N.Y. Slip Op. 31591(U), *4, 2015 WL 5062168 [Sup. Ct., N.Y. County] ).
''Pursuant to UCC 3-804, which is intended to provide a method of recover}' on instruments that are lost, destroyed, or stolen, a plaintiff is required to submit 'due proof of [the plaintiffs] ownership, the facts which prevent [its] production of [the note,] and its terms' " (Deutsche Bank Natl. Trust Co. v. Anderson, 161 A.D.3d at 1044, 79 N.Y.S.3d 42, quoting UCC 3-804). Here, although plaintiff was unable to produce the note, a copy of the note endorsed in blank submitted by the plaintiff provided sufficient evidence of its terms (see N.Y.Community Bank v. Jennings, 2015 N.Y. Slip Op. 31591(U), *4, 2015 WL 5062168 [Sup. Ct., N.Y. County]
In Zolonitsky, supra, 195 A.D.3d at 662 the Second Department found that although the copy of the note annexed to the lost note affidavit provided sufficient evidence of its terms, the lost note affidavit failed to sufficiently establish Wells Fargo's ownership as it "failed to establish when the note was acquired and failed to provide sufficient facts as to when the search for the note occurred, who conducted the search, or how or when the note was lost." Similarly, in New York Community Bank v. Jennings, 2015 NY Slip Op 31591(U); 2015 N.Y. Misc. 3103 (Queens Co. 2015), the court found the lost note affidavits to be insufficient since the affidavits of the assignee's officers failed to demonstrate that they had personal knowledge about the loss of the note or to "discuss any procedures for the safekeeping and retrieval of original notes or lost note procedures for determining that an original note is lost. They do not include any indication as to where the original notes are likely to be kept, what efforts if any, were made to preserve them, whether notes were routinely or otherwise destroyed, who conducted the search in this instance and whether a search was conducted in every location where notes were likely to be found" Id. at 9-10.
The branch of the motion for dismissal of the complaint on the grounds that the plaintiff failed to furnish Mrs. McNamara with a 90-day pre-foreclosure notice pursuant to RPAPL 1304 is denied because she was not a signatory to the note and thus not a "borrower" entitled to such notice (see, US Bank N.A. vLevine, 52 Misc3d 736, 36 NYS3d 786 [Sup Ct, Westchester County 2016] [provisions of RPAPL 1304 held inapplicable to fiduciary of borrower's estate]; Wells Fargo Bank, NA v Balk, 50 Misc3d 1205 [A], 29 NYS3d 850 [Sup Ct, Suffolk County 2015] [RPAPL 1304 inapplicable where obligor/borrower died prior to action]; New York Community Bank v Jennings, 2015 NY Misc LEXIS 3103, 2015 WL 5062168, 2015 NY Slip Op 31591 [U] [Sup Ct, Queens County 2015] [RPAPL 1304 inapplicable where both borrowers were deceased]; U.S. Bank v Hasan, 42 Misc3d 1221 [A], 986 NYS2d 869 [Sup Ct, Kings County 2014] [non-obligor spouse who only signed the mortgage not deemed a "borrower" for the purposes of RPAPL 1304]; see also, U.S. Bank N.A. v Pontecorvo, 2014 NY Misc LEXIS 5784, 2014 WL 7653336, 2014 NY Slip Op 33413 [U] [Sup Ct, Suffolk County 2014] [borrower was deceased prior to commencement; no evidence that the co-executors assumed the mortgage or obtained a new mortgage in their own names]; Vanderbilt Mtge. & Fin. Inc. v Davis, 2013 NY Misc. LEXIS 4027, 2013 WL 4878361, 2013 NY Slip Op 32117 [U] [Sup Ct, Suffolk County 2013] [provisions of RPAPL 1304 and 1306 deemed inapplicable to co-executors of decedent's estate]; Bank of N.Y. Mellon v Roman, 2012 NY Misc LEXIS 3064, 2012 WL 2563828, 2012 NY Slip Op 31687 [U] [Sup Ct, Queens County 2012] [provisions of RPAPL 1304 deemed inapplicable to the co-executors of borro