Opinion
2018–07267 2018–07268 Index No. 6843/15
02-17-2021
WELLS FARGO BANK N.A., etc., respondent, v. Jerry CLEOPHAT, et al., defendants, Claudiane Cherenfant, appellant.
Holly C. Meyer, Bohemia, NY, for appellant.
Holly C. Meyer, Bohemia, NY, for appellant.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Claudiane Cherenfant appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered January 24, 2018, and (2) an order of the same court also entered January 24, 2018. The first 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 Claudiane Cherenfant, to strike that defendant's answer, and for an order of reference. The second order, insofar as appealed from, also granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Claudiane Cherenfant, to strike that defendant's answer, and for an order of reference, and appointed a referee to compute the amount due to the plaintiff.
ORDERED that the orders are reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Claudiane Cherenfant, to strike that defendant's answer, and for an order of reference are denied.
The plaintiff failed to establish its prima facie entitlement to judgment as a matter of law. "Generally, 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" ( Bank of Am., N.A. v. Palacio, 187 A.D.3d 693, 695, 132 N.Y.S.3d 153 ). Here, the plaintiff's submissions, including the affidavits of Maurreene D. Magdaleno, an employee of the plaintiff's loan servicer, failed to lay a proper foundation for the admission of a business record pursuant to CPLR 4518(a) (see Deutsche Bank Natl. Trust Co. v. Dennis, 181 A.D.3d 864, 869, 122 N.Y.S.3d 95 ; Bank of N.Y. Mellon v. Weber, 169 A.D.3d 981, 984, 94 N.Y.S.3d 582 ). Moreover, even if a proper foundation for the admissibility of the business records had been established, Magdaleno's assertions as to the contents of the business records she reviewed was inadmissable hearsay to the extent that the documents she described were not submitted with or even identified in her affidavits (see Deutsche Bank Natl. Trust Co. v. McGann, 183 A.D.3d 700, 702, 122 N.Y.S.3d 76 ; JPMorgan Chase Bank, N.A. v. Grennan, 175 A.D.3d 1513, 1516–1517, 109 N.Y.S.3d 436 ; HSBC Bank USA, N.A. v. Bazigos, 175 A.D.3d 1506, 109 N.Y.S.3d 381 ).
In addition, the plaintiff failed to demonstrate, prima facie, that a notice of default in accordance with sections 15 and 22 of the mortgage was properly transmitted to the defendant Claudiane Cherenfant (hereinafter the defendant) prior to the commencement of this action (see U.S. Bank N.A. v. Callender, 176 A.D.3d 1249, 1251, 111 N.Y.S.3d 65 ; Wells Fargo Bank, N.A. v. Eisler, 118 A.D.3d 982, 983, 988 N.Y.S.2d 682 ).
Moreover, the plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304. The plaintiff failed to provide proof of the actual mailing of the 90–day notice required by RPAPL 1304, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed (see U.S. Bank N.A. v. Herzberg, 180 A.D.3d 952, 953–954, 115 N.Y.S.3d 913 ). Further, Magdaleno, who asserted that the notices required under RPAPL 1304 were mailed, did not aver that she had mailed the notices herself (see Central Mtge. Co. v. Canas, 173 A.D.3d 967, 969, 104 N.Y.S.3d 152 ).
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, to strike her answer, and for an order of reference.
The defendant's remaining contentions are without merit.
DILLON, J.P., HINDS–RADIX, BARROS and WOOTEN, JJ., concur.