& Herzberg, LLP, Hauppauge, NY (Jeffrey Herzberg of
counsel), for appellant.
Oviatt Gilman LLP, Rochester, NY (Frances M. Kabat and
Richard Mullen of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, HECTOR D. LASALLE,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant appeals, as
limited by her brief, from (1) stated portions of an order of
the Supreme Court, Suffolk County (Whelan, J.), dated April
27, 2015, and (2) so much of an order of the same court, also
dated April 27, 2015, as granted those branches of the
plaintiff's motion which were for summary judgment on the
complaint, to strike her answer, and for an order of
reference, and appointed a referee to compute the amount due
on the mortgage loan.
that the appeal from the first order dated April 27, 2015, is
dismissed, as the portions of the first order appealed from
were superseded by the second order dated April 27, 2015; and
it is further, ORDERED that the second order dated April 27,
2015, is reversed insofar as appealed from, on the law, those
branches of the plaintiff's motion which were for summary
judgment on the complaint, to strike the defendant's
answer, and for an order of reference are denied, and so much
of the first order dated April 27, 2015, as also granted
those branches of the plaintiff's motion is vacated; and
it is further, ORDERED that one bill of costs is awarded to
plaintiff commenced this action against the defendant to
foreclose a mortgage on residential property located in
Mattituck. The plaintiff alleged, among other things, that
the defendant defaulted on her mortgage obligation, and that,
upon information and belief, it complied with RPAPL 1304.
Thereafter, the plaintiff moved, inter alia, for summary
judgment on the complaint. In opposition, the defendant
asserted that the plaintiff failed to properly serve the
required 90-day notice in accordance with RPAPL 1304. In an
order dated April 27, 2015, the Supreme Court granted the
plaintiff's motion, inter alia, for summary judgment on
the complaint, to strike her answer, and for an order of
reference. In another order also dated April 27, 2015, the
court granted the plaintiff's motion and appointed a
referee to compute the amount due on the mortgage loan. We
reverse insofar as appealed from.
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 A.D.3d 95, 106; see CitiMortgage,
Inc. v Pappas, 147 A.D.3d 900; Deutsche Bank Natl.
Trust Co. v Spanos, 102 A.D.3d 909, 910). 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).
By requiring the lender or mortgage loan servicer to send the
RPAPL 1304 notice by registered or certified mail and also by
first-class mail, the Legislature implicitly provided the
means for the plaintiff to demonstrate its compliance with
the statute, i.e., by submission of proof of mailing by the
post office (see CitiMortgage, Inc. v Pappas, 147
the plaintiff failed to demonstrate, prima facie, its strict
compliance with RPAPL 1304 (see Hudson City Sav. Bank v
DePasquale, 113 A.D.3d 595, 596). In support of its
motion, the plaintiff submitted the affidavit of Monica I.
Montalvo Rivas, its vice president of loan documentation,
stating that she had "reviewed the 90 day
pre-foreclosure notice sent to Borrower on October 31, 2013
to the last known address of Borrower, which is the residence
that is [the] subject of the Mortgage, by first class mail
and certified mail." Annexed to Rivas's affidavit
was a copy of the notice, along with a copy of a
"Certified Mail Receipt" containing the
defendant's address and a "Certified Mail
Number." The receipt contained no language indicating
that it was issued by the United States Postal Service.
"While mailing may be proved by documents meeting the
requirements of the business exception records exception to
the rule against hearsay, " here, Rivas did not aver
that she was familiar with the plaintiff's mailing
practices and procedures, and therefore did not establish
proof of a standard office practice and procedure designed to
ensure that items are properly addressed and mailed (see
CitiMortgage, Inc. v Pappas, 147 A.D.3d at 901). In any
event, the plaintiff failed to submit any proof
substantiating Rivas's assertion that the notice was
mailed to the defendant by first class mail.
since the plaintiff failed to establish, prima facie, that it
strictly complied with RPAPL 1304, the Supreme Court should
have denied those branches of the plaintiff's motion
which were for summary judgment on the complaint, to strike
the defendant's answer, and for an order of reference
(see Deutsche Bank Natl. Trust Co. v Cunningham, 142
A.D.3d 634, 636; Bank of N.Y. Mellon v Aquino, 131
A.D.3d 1186, 1186-1187; Wells Fargo Bank, NA v
Burke, 125 A.D.3d 765, 767).
defendant's remaining contentions need not be reached in