U.S. Bank Nat'l Ass'n v. Maher

219 A.D.3d 1372

196 N.Y.S.3d 127

U.S. BANK NATIONAL ASSOCIATION, etc., appellant,

v.Jennifer A. MAHER, etc., et al., respondents, et al., defendants.

2020-07471

Index No. 500063/17

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

Submitted—February 14, 2023

September 13, 2023

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista of counsel), for appellant.

Law Office of James Marsico, PLLC (Joseph E. Ruyack III, Chester, NY, of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Putnam County (Sam D. Walker, J.), dated August 7, 2020. The order denied the plaintiff's motion, in effect, pursuant to CPLR 4403 to reject the report of a referee (Erin Noelle Guven, Ct. Atty. Ref.) dated December 9, 2019, made after a nonjury trial, determining that the plaintiff failed to comply with RPAPL 1304 and recommending that the complaint be dismissed insofar as asserted against the defendants Jennifer A. Maher and Eileen P. Reilly, and confirmed the referee's report.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 4403 to reject so much of the referee's report as determined that the plaintiff failed to comply with RPAPL 1304 with respect to the defendant Jennifer A. Maher and recommended that the complaint be dismissed insofar as asserted against that defendant, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with one bill of costs payable by the defendant Jennifer A. Maher to the plaintiff, and one bill of costs payable by the plaintiff to the defendant Eileen P. Reilly.

On March 24, 2005, the defendants Jennifer A. Maher and Eileen P. Reilly (hereinafter together the defendants) executed a note in the amount of $556,000 in favor of nonparty Wells Fargo Bank, N.A. (hereinafter Wells Fargo). The note was secured by a mortgage on certain real property located in Putnam County. By summons and complaint dated January 20, 2017, the plaintiff, Wells Fargo's successor in interest, commenced this action to foreclose the mortgage against the defendants, among others. In their answer, the defendants asserted various affirmative defenses, including that the plaintiff failed to comply with RPAPL 1304.

A nonjury trial was subsequently held before a court attorney referee on the issue of whether the plaintiff complied with RPAPL 1304. Following the trial, the referee issued a report dated December 9, 2019, determining that the plaintiff failed to establish its compliance with RPAPL 1304 and recommending that the complaint be dismissed insofar as asserted against the defendants. The plaintiff moved, in effect, pursuant to CPLR 4403 to reject the referee's report. By order dated August 7, 2020, the Supreme Court denied the plaintiff's motion and confirmed the referee's report. The plaintiff appeals.

CPLR 4403 provides that, "[u]pon the motion of any party ..., the judge required to decide the issue may confirm or reject, in whole or in part, ... the report of a referee to report" (see Wells Fargo Bank, N.A. v. Cherot, 197 A.D.3d 773, 775, 150 N.Y.S.3d 597 ; HSBC Bank USA, N.A. v. Aquaviva, 177 A.D.3d 713, 715, 111 N.Y.S.3d 646 ). "The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility" ( Citimortgage, Inc. v. Kidd, 148 A.D.3d 767, 768, 49 N.Y.S.3d 482 ; see Wells Fargo Bank, N.A. v. Cherot, 197 A.D.3d at 775, 150 N.Y.S.3d 597 ).

"Pursuant to RPAPL 1304(1) and (2), at least 90 days before the 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" ( Bank of N.Y. Mellon v. Basta, 205 A.D.3d 664, 665, 165 N.Y.S.3d 715 ). "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 ; see Bank of N.Y. Mellon v. Basta, 205 A.D.3d at 665, 165 N.Y.S.3d 715 ). Further, "business records received from another entity ‘may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient's own records and routinely relied upon by the...