Opinion
2019–12496 Index No. 712448/18
06-21-2023
U.S. BANK TRUST, N.A., etc., respondent, v. Therman SMITH, et al., defendants, Sherri Smith, appellant.
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for appellant.
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for appellant.
COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, LINDA CHRISTOPHER, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Sherri Smith appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered September 24, 2019. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Sherri Smith and for an order of reference.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Sherri Smith and for an order of reference are denied.
In August 2016, the plaintiff commenced this action against, among others, the defendant Sherri Smith (hereinafter the defendant) to foreclose a mortgage encumbering certain real property located in Queens. After the defendant joined issue, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant opposed the motion, contending, among other things, that the plaintiff failed to produce admissible evidence to establish an alleged default in payment and failed to demonstrate strict compliance with the service requirements of RPAPL 1304. In an order entered September 24, 2019, the Supreme Court, inter alia, granted those branches of the plaintiff's motion.
" ‘In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default’ " ( BNH Milf, LLC v. Milford St. Props., LLC, 192 A.D.3d 960, 962, 146 N.Y.S.3d 166, quoting Tri–State Loan Acquisitions III, LLC v. Litkowski, 172 A.D.3d 780, 782, 100 N.Y.S.3d 356 ). The plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law (see BNH Milf, LLC v. Milford St. Props., LLC, 192 A.D.3d at 962, 146 N.Y.S.3d 166 ; US Bank N.A. v. Hunte, 176 A.D.3d 894, 896, 110 N.Y.S.3d 53 ). Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form (see BNH Milf, LLC v. Milford St. Props., LLC, 192 A.D.3d at 962, 146 N.Y.S.3d 166 ; Deutsche Bank Natl. Trust Co. v. McGann, 183 A.D.3d 700, 702, 122 N.Y.S.3d 76 ). "[T]he business record exception to the hearsay rule applies to a ‘writing or record’ ( CPLR 4518[a] ) ... [and] it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" ( Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 205, 97 N.Y.S.3d 286 [citation omitted]). Without the introduction of the records themselves, "a witness's testimony as to the contents of the records is inadmissible hearsay" ( id. at 206, 97 N.Y.S.3d 286 [internal quotation marks omitted]).
Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the complaint insofar as asserted against the defendant. The affidavit of the plaintiff's servicing agent failed to provide proof of the defendant's default in payment of the note in admissible form (see Bank of N.Y. Mellon v. Deloney, 197 A.D.3d 548, 550, 153 N.Y.S.3d 64 ), as the affiant failed to attach copies of the business records on which she relied (see JPMorgan Chase Bank, N.A. v. Grennan, 175 A.D.3d 1513, 1516–1517, 109 N.Y.S.3d 436 ).
The plaintiff also failed to demonstrate, prima facie, that it complied with RPAPL 1304. " ‘[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a residential foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition’ " ( Christiana Trust v. Moneta, 186 A.D.3d 1604, 1606, 131 N.Y.S.3d 668, quoting Aurora Loan Serv., LLC v. Vrionedes, 167 A.D.3d 829, 831, 91 N.Y.S.3d 150 [internal quotation marks omitted]). Pursuant to RPAPL 1304, at least 90 days before commencement of an action to foreclose a mortgage on a home loan, a specified notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (see id. § 1304[1], [2] ). " ‘Proof of the requisite mailing is 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’ " ( PennyMac Corp. v. Khan, 178 A.D.3d 1064, 1065–1066, 116 N.Y.S.3d 64, quoting Wells Fargo Bank, NA v. Mandrin, 160 A.D.3d 1014, 1016, 76 N.Y.S.3d 182 ; see Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 20–21, 98 N.Y.S.3d 273 ).
Here, although the affidavit of the servicing agent stated that the 90–day notice was mailed to the defendant by certified mail and regular first-class mail, the affiant did not attest to having personally mailed the notices, nor that she was familiar with the mailing procedures of the entity that mailed the notices and that such procedures were designed to ensure that the notices were properly addressed and mailed (see U.S. Bank N.A. v. Krakoff, 199 A.D.3d 859, 863, 157 N.Y.S.3d 299 ). The plaintiff also failed to submit documentation from the United States Postal Service proving the first-class mailing of the 90–day notice to the defendant (see Bank of N.Y. Mellon Corp. v. Salvador, 207 A.D.3d 612, 614, 172 N.Y.S.3d 446 ; U.S. Bank N.A. v. Offley, 170 A.D.3d 1240, 1242, 97 N.Y.S.3d 307 ).
Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, without regard to the sufficiency of the opposing 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 ).
DUFFY, J.P., RIVERA, CHRISTOPHER and VOUTSINAS, JJ., concur.