Opinion
13542 Index No. 850292/17 Case No. 2020-03277
04-06-2021
U.S. BANK TRUST, N.A., etc., Plaintiff–Respondent, v. Doris E. STEWART, Defendant–Appellant, Commissioner of Jurors, et al., Defendants.
Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellant. Locke Lord LLP, New York (Andrew M. Braunstein of counsel), for respondent.
Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellant.
Locke Lord LLP, New York (Andrew M. Braunstein of counsel), for respondent.
Renwick, J.P., Kennedy, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about January 10, 2020, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to renew, and upon renewal, granted plaintiff's motion for summary judgment and an order of reference, and denied defendant Doris E. Stewart's motion for leave to renew and reargue, unanimously modified, on the law, to deny plaintiff summary judgment, and otherwise affirmed, without costs.
Supreme Court providently exercised its discretion in granting leave to renew, as it appears from the record that U.S. Bank reasonably believed that the language in its de-acceleration notice was clear in its intent to de-accelerate, and was unaware that Supreme Court would require more, i.e., monthly mortgage statements (see Milone v. U.S. Bank N.A., 164 A.D.3d 145, 153, 83 N.Y.S.3d 524 [2d Dept. 2018], lv dismissed 34 N.Y.3d 1009, 115 N.Y.S.3d 205, 138 N.E.3d 1088 [2019] ; see also Bayview Loan Servicing, LLC v. Dalal, 184 A.D.3d 547, 124 N.Y.S.3d 537 [1st Dept. 2020] ). Nevertheless, U.S. Bank failed to establish compliance with RPAPL 1304, as "[t]he affidavit of mailing, by a person who did not personally do the mailing but relied on his knowledge of his employer's office practices, does not demonstrate the affiant's familiarity with his employer's mailing practices and procedures with respect to notices of default" ( HSBC Bank USA, N.A. v. Gifford, 161 A.D.3d 618, 618, 78 N.Y.S.3d 34 [1st Dept. 2018] ). While the 90–day notice included in the record on appeal reflected numbered bar codes, the numbers did not establish independent proof of the actual mailing (see Citibank, N.A. v. Wood, 150 A.D.3d 813, 814, 55 N.Y.S.3d 109 [2d Dept. 2017] ). Additionally, defendant did not establish entitlement to summary judgment, as issues of fact exist regarding the claimed nonreceipt of the 90–day notice.