MORTGAGE FORECLOSURE - PROVING RPAPL 1304 COMPLIANCE

Citimortgage, Inc. v Succes, 2019 NY Slip Op 02058, Decided on March 20, 2019, Appellate Division, Second Department:

"RPAPL 1304(1) provides that "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." "[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" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106; see Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910). RPAPL 1304(2) requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower. "Proper mailing may be proven by documents meeting the requirements of the business records exception to the rule against hearsay under CPLR 4518" (Citimortgage, Inc. v Wallach, 163 AD3d 520, 521; see CitiMortgage, Inc. v Espinal, 134 AD3d 876, 878).

Here, the plaintiff relied upon the affidavit of an employee who claimed that the plaintiff's business records showed that RPAPL 1304 notices were sent by certified and first-class mail. However, the documentary evidence submitted in support of those claims redacted certain tracking numbers and failed to establish, prima facie, that the notices were mailed by first-class mail (cf. Citimortgage, Inc. v Wallach, 163 AD3d at 521; Citimortgage, Inc. v Banks, 155 AD3d 936, 937). Since the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Bank of N.Y. Mellon v Zavolunov, 157 AD3d 754, 757)."