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

• Decision Date: 10 July 2019
• Docket Number: Index No. 703445/14,2017-03669,2016–07498
• Citation: 174 A.D.3d 661,106 N.Y.S.3d 78
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., Appellant, v. Mohammed AHMED, etc., Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 661

106 N.Y.S.3d 78

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

v.Mohammed AHMED, etc., Respondent, et al., Defendants.

2016–07498

2017-03669

Index No. 703445/14

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

Submitted—March 19, 2019

July 10, 2019

Fein, Such & Crane, LLP (D.J. & J.A. Cirando, Syracuse, N.Y. [John A. Cirando, Bradley E. Keem, and Elizabeth deV. Moeller], of counsel), for appellant.

Petroff Amshen LLP, Brooklyn, N.Y. (Serge F. Petroff, James Tierney, and Christopher Villanti of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, BETSY BARROS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Leslie J. Purificacion, J.), entered May 4, 2016, and (2) an order of the same court entered March 16, 2017. The order entered May 4, 2016, 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 Mohammed Ahmed, in effect, for summary judgment dismissing the affirmative defenses, and for an order of reference. The order entered March 16, 2017, insofar as appealed from, denied that branch of the plaintiff's motion which was for leave to renew the same branches of its prior motion.

ORDERED that the order entered May 4, 2016, is modified, on the law, by deleting the provision thereof denying those branches of the plaintiff's motion which were, in effect, for summary judgment dismissing the first, second, third, sixth, seventh, eighth, ninth, tenth, and eleventh affirmative defenses, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, and so much of the order entered March 16, 2017, as denied that branch of the plaintiff's motion which was for leave to renew those branches of its prior motion which were, in effect, for summary judgment dismissing the first, second, third, sixth, seventh, eighth, ninth, tenth, and eleventh affirmative defenses is vacated; and it is further,

ORDERED that the order entered March 16, 2017, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Mohammed Ahmed.

In May 2014, the plaintiff commenced this action against the defendant Mohammed Ahmed (hereinafter the defendant) and others, to foreclose a consolidated mortgage in the amount of $595,000. The defendant asserted as affirmative defenses in his answer, inter alia, that the plaintiff failed to comply with the notice of default provisions of the mortgage and with the statutory requirements to commence a foreclosure action. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, in effect, for summary judgment dismissing the defendant's affirmative defenses, and for an order of reference. The Supreme Court, inter alia, denied those branches of the plaintiff's motion. Thereafter, the plaintiff moved, inter alia, for leave to renew its prior motion, and that branch of its motion was denied. The plaintiff appeals.

We agree with the Supreme Court's determination that the plaintiff failed to demonstrate, prima facie, that it strictly complied with RPAPL 1304. Proper service of the RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of a foreclosure action (see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 103, 923 N.Y.S.2d 609 ). The statute requires that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (see RPAPL 1304[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" ( 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, 98 N.Y.S.3d 273 ).

Here, the plaintiff failed to submit an affidavit of mailing demonstrating that it properly mailed the RPAPL 1304 notice to the defendant pursuant to the terms of the statute (see U.S. Bank N.A. v. Cope, 167 A.D.3d 965, 90 N.Y.S.3d 227 ; Nationstar Mtge., LLC v. LaPorte, 162 A.D.3d 784, 79 N.Y.S.3d 70 ). Further, although the plaintiff submitted a certified mail receipt and tracking information from the United States Postal Service, under the circumstances, these documents did not prove that the RPAPL 1304 notice was actually mailed. In particular, the certified mail receipt did not contain a postmark indicating that it was sent. Further, there was no tracking number on the RPAPL notice or any other information on either the notice or the certified mail receipt to show that the receipt pertained to the mailing of the RPAPL notice, as opposed to some other document sent to the defendant. Similarly, the tracking information the plaintiff submitted did not contain any information linking the tracking information to the RPAPL notice and did not contain a delivery address. Thus, the documents submitted merely proved that a mailing was delivered on a particular date to an address in Astoria, Queens. Finally, the affidavit of the plaintiff's representative was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, "as the representative did not provide proof of a standard office mailing procedure" ( U.S. Bank N.A. v. Cope, 167 A.D.3d at 968, 90 N.Y.S.3d 227 ; see Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 20, 98 N.Y.S.3d 273 ; U.S. Bank N.A. v. Henry, 157 A.D.3d 839, 842, 69 N.Y.S.3d 656 ; Investors Sav. Bank v. Salas, 152 A.D.3d 752, 753, 58 N.Y.S.3d 600 ; Citibank, N.A. v. Wood, 150 A.D.3d 813, 814, 55 N.Y.S.3d 109 ; cf. Wells Fargo Bank, N.A. v. Heiney, 168 A.D.3d 1126, 93 N.Y.S.3d 84 ).

The plaintiff similarly failed to establish, prima facie, that it mailed a notice of default to the defendant by first-class mail on any particular date, or actually delivered such notice to the designated address if sent by other means, as required by the terms of the mortgage as a condition precedent to foreclosure (see Wells Fargo Bank, N.A. v. Sakizada, 168 A.D.3d 789, 791, 91 N.Y.S.3d 268 ; Emigrant Bank v. Myers, 147 A.D.3d 1027, 1028, 47 N.Y.S.3d 446 ).

Since the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304 and with a contractual condition precedent, we agree with the Supreme Court's determination denying those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant, in effect, for summary judgment dismissing the fourth and fifth affirmative defenses, and for an order of reference, regardless of the sufficiency of the defendant's opposition papers (see Winegrad v. New York Univ. Med....