U.S. Bank N.A. v. Pickering-Robinson

197 A.D.3d 757

153 N.Y.S.3d 179

U.S. BANK N.A., appellant,

v.Carol PICKERING–ROBINSON, etc., respondent, et al., defendants.

2016–10805

Index No. 8639/11

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 26, 2021

August 25, 2021

Zeichner Ellman & Krause LLP, New York, N.Y. (J. David Morrissy and BJ Finneran of counsel), for appellant.

Rohan F. Harrison, South Ozone Park, NY, for respondent.

HECTOR D. LASALLE, P.J., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated May 5, 2016. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Carol Pickering–Robinson's decedent, to strike his amended answer, and for an order of reference, and granted that branch of the cross motion of the defendant Carol Pickering–Robinson's decedent which was for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of the defendant Carol Pickering–Robinson's decedent which was for summary judgment dismissing the complaint insofar as asserted against him, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On January 14, 2009, Christopher Pickering (hereinafter the defendant) entered into a consolidation, extension, and modification agreement (hereinafter CEMA) with the plaintiff, which consolidated a first loan, and its respective mortgage and note executed in 2007, and a second loan, and that loan's respective mortgage and note, executed on January 14, 2009, creating a single lien on the subject property in the amount of $341,000. The latter lien was evidenced by a consolidated note, and secured by a consolidated mortgage encumbering the subject property located in Brooklyn.

On April 14, 2011, the plaintiff commenced this action to foreclose the consolidated mortgage, alleging, inter alia, that the defendant had defaulted under the terms of the consolidated loan by failing to make his mortgage payment due August 1, 2009, and on all payments due thereafter. The defendant interposed an amended answer with counterclaims.

In March 2015, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike his amended answer, and for an order of reference. In May 2015, the defendant cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him based on lack of standing and failure to comply with RPAPL 1304.

By order dated May 5, 2016, the Supreme Court denied the plaintiff's motion and granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against him, determining that the plaintiff failed to establish compliance with RPAPL 1304 and also failed to establish, prima facie, that it had standing to commence the action. The plaintiff appeals. While the appeal was pending, the defendant died, and Carol Pickering–Robinson, as administrator of the defendant's estate, was substituted for the defendant.

"[I]n a residential foreclosure action, a plaintiff moving for summary judgment must tender sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304" ( U.S. Bank N.A. v. Henderson, 163 A.D.3d 601, 602, 81 N.Y.S.3d 80 [internal quotation marks omitted]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( id. at 602, 81 N.Y.S.3d 80 [internal quotation marks omitted]). Pursuant to RPAPL 1304(1), "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower ..., including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." The notice "shall be sent by such lender, assignee ... or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage" ( id. § 1304[2] ).

A plaintiff demonstrates its compliance with the statute "by proof of the requisite mailing, which can be established [by] 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" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 21, 98 N.Y.S.3d 273 [internal quotation marks omitted]). "There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon" ( Citigroup v. Kopelowitz, 147 A.D.3d 1014, 1015, 48 N.Y.S.3d 223 ).

Here, the plaintiff initially relied on an affidavit of Angela M. Ward, an officer of the plaintiff (hereinafter the Ward affidavit), and subsequently, in reply and in opposition to the defendant's cross motion, an affidavit of Mary D. Lee (hereinafter the Lee affidavit), another officer of the plaintiff, and documentary evidence submitted with the affidavits. The Supreme Court correctly found that the Ward affidavit, together with the one letter that purported to constitute the statutorily required 90–day notice, was insufficient to establish the plaintiff's compliance with RPAPL 1304. Although the Ward affidavit stated that the RPAPL 1304 notices were mailed by certified and regular first-class mail, the letter itself contained no indication on it as to whether it was mailed to the defendant by registered or certified mail, or by first-class mail, or whether it was actually mailed at all (see Everbank v. Greisman, 180 A.D.3d 758, 760, 119 N.Y.S.3d 231 ), and no other documents were submitted with the Ward affidavit proving that the letter was actually mailed as required. For example, the plaintiff failed to submit an affidavit of mailing or proof of mailing by the United States Postal Service evidencing that it properly mailed notice to the defendant pursuant to RPAPL 1304 (see Deutsche Bank Natl. Trust Co. v. Dennis, 181 A.D.3d 864, 867, 122 N.Y.S.3d 95 ). Contrary to the plaintiff's contention, "[t]he presence of [a] 20–digit number[ ] on the cop[y] of the 90–day notice[ ] submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304" ( Wilmington Sav. Fund Socy., FSB v. Hershkowitz, 189 A.D.3d 1126, 1129, 138 N.Y.S.3d 54 [internal quotation marks omitted]; see CitiMortgage, Inc. v. Osorio, 174 A.D.3d 496, 498, 104 N.Y.S.3d 196 ; U.S. Bank N.A. v. Offley, 170 A.D.3d 1240, 1242, 97 N.Y.S.3d 307 ). Moreover, as Ward did not aver that she was familiar with the plaintiff's mailing practices and procedures, the plaintiff failed to submit evidence establishing the existence of a standard office practice and procedure designed to ensure that items are properly addressed and mailed (see Central Mtge. Co. v. Canas, 173 A.D.3d 967, 969, 104 N.Y.S.3d 152 ; Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 20–21, 98 N.Y.S.3d 273 ). Accordingly, since Ward did not claim to have mailed the notice herself, or to have personal knowledge of the actual mailing, the Ward affidavit and notice, without more, were insufficient to establish, prima facie, the plaintiff's compliance with RPAPL 1304 (see Wells Fargo Bank, N.A. v. Shteynberg, 187 A.D.3d 967, 968, 130 N.Y.S.3d 691 ; PennyMac Corp. v. Khan, 178 A.D.3d 1064, 1066, 116 N.Y.S.3d 64 ).

However, the Supreme Court also should have considered the Lee affidavit, and a printout from the plaintiff's loan servicing record submitted as an exhibit thereto, which established the plaintiff's compliance with RPAPL 1304. Notably, the defendant did not object to the plaintiff's submission of the Lee affidavit, despite its being submitted for the first time in reply, and does not raise any objection to its admission on appeal. In any event, "[a]lthough a party moving for summary judgement cannot meet its prima facie burden by submitting evidence for the first time in reply" ( Citimortgage, Inc. v. Espinal, 134 A.D.3d 876, 879, 23 N.Y.S.3d 251 ), the Lee affidavit was an exception to that rule, as it was submitted in response to a specific argument raised for the first time in opposition to the plaintiff's motion and in support of the defendant's cross motion (see Deutsche Bank Natl. Trust Co. v Cole, 168 A.D.3d 677, 679, 91 N.Y.S.3d 224 ; Central Mtge. Co. v. Jahnsen, 150 A.D.3d 661, 663–664, 56 N.Y.S.3d 107 ), and the defendant could have responded to the Lee affidavit in his reply papers in further support of his cross motion (see LNV Corp. v. Sofer, 171 A.D.3d 1033, 1036, 98 N.Y.S.3d 302 ), though he did not do so.

The printout from the plaintiff's loan servicing record "created by U.S. Bank upon the mailing of the RPAPL Notice by certified and first class mail," consisted of a chart, titled "COLLECTIONS/CUSTOMER SERVICE LOAN ACTIVITY ARCHIVE FOR THE TIME PERIOD 01/01/10 THRU 03/31/12," with its contents redacted except for one entry showing the following activity on December 3, 2010, the date on the copy of the notice: "90 DY PROP REG/CRT." Lee explained that "the abbreviated term ‘REG’ refers to the first class mail ...