Opinion
12494 Index No. 850196/16 Case No. 2020-02782
12-01-2020
In re Karl O'FARREL, Petitioner–Respondent, v. CALIBER HOME LOANS et al., Respondents–Appellants, John Doe # 1 et al., Respondents.
Fein, Such & Crane LLP, Westbury (Michael S. Hanusek of counsel), for appellants. Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for respondents.
Fein, Such & Crane LLP, Westbury (Michael S. Hanusek of counsel), for appellants.
Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for respondents.
Gische, J.P., Webber, Oing, Mendez, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 19, 2019, which denied respondents' motion for summary judgment dismissing the petition, unanimously affirmed.
Respondents failed to establish prima facie that they sent to petitioner, 90 days prior to the sale of his cooperative shares held as collateral, the additional pre-disposition notice required by UCC 9–611(f) that he was in danger of losing his home. Their supporting affidavit failed to demonstrate the affiant's familiarity with their mailing practices and procedures and do not provide a foundation for a business records exception to hearsay evidence ( CPLR § 4518 ; see e.g. Wells Fargo Bank, N.A. v. Merino, 173 A.D.3d 491, 99 N.Y.S.3d 877 [1st Dept. 2019] [insufficiency of affidavit submitted to show compliance with RPAPL 1304 ] ). Additionally, the affidavit of service for the Notice of Default, required by the loan, failed to include a unit number in this large multi-family building ( Wells Fargo Bank, N.A. v. Biedermann, 178 A.D.3d 508, 116 N.Y.S.3d 7 [1st Dept. 2019] ).