Argued-May 8, 2017
Brooklyn Legal Services, Brooklyn, NY (Catherine P. Isobe of
counsel), for appellant.
Schiller, Knapp, Lefkowitz & Hertzel, LLP, Latham, NY
(Gregory J. Sanda of counsel), for respondent.
C. BALKIN, J.P. SHERI S. ROMAN SYLVIA O. HLNDS-RADIX HECTOR
D. LASALLE, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Jean Joseph
appeals, as limited by his brief, from so much of an order of
the Supreme Court, Kings County (Steinhardt, J.), dated
August 4, 2014, as granted those branches of the plaintiffs
motion which were for summary judgment on the complaint
insofar as asserted against him, to strike his answer, and
for an order of reference.
that the order is reversed insofar as appealed from, on the
law, with costs, and those branches of the plaintiffs motion
which were for summary judgment on the complaint insofar as
asserted against the defendant Jean Joseph, to strike his
answer, and for an order of reference are denied, and an
amended order of the same court dated January 20, 2016,
which, inter alia, referred the matter to a referee is
January 2009, Jean Joseph (hereinafter the defendant)
borrowed the sum of $422, 394 from the plaintiff, M&T
Bank. The loan was evidenced by a note and secured by a
mortgage in favor of Mortgage Electronic Registration
Systems, Inc. (hereinafter MERS), as nominee for the
plaintiff, for the purposes of recording and encumbering real
property in Brooklyn. The defendant allegedly defaulted on
the loan by failing to make the payment due on June 1, 2010.
In December 2010 the plaintiff commenced this action to
foreclose the mortgage. The defendant interposed an answer in
which he asserted various affirmative defenses, including
that the plaintiff failed to comply with the statutory notice
requirements of RPAPL 1304. After a mandatory foreclosure
settlement conference, the plaintiff moved, inter alia, for
summary judgment on the complaint insofar as asserted against
the defendant, to strike the defendant's answer, and for
an order of reference. The Supreme Court granted the motion.
We reverse insofar as appealed from.
moving for summary judgment in an action to foreclose a
mortgage, a plaintiff establishes its case as a matter of law
through the production of the mortgage, the unpaid note, and
evidence of default" (Wells Fargo Bank, N.A. v
Webster, 61 A.D.3d 856, 856 [brackets and internal
quotation marks omitted]; see Bank of N.Y. Mellon v
Aquino, 131 A.D.3d 1186, 1186; Washington Mut. Bank
v Schenk, 112 A.D.3d 615, 616). Furthermore, where, as
here, the plaintiff in a residential foreclosure action
alleges in its complaint that it has served an RPAPL 13 04
notice on the borrowers, a plaintiff moving for summary
judgment must "prove its allegation by tendering
sufficient evidence demonstrating the absence of material
issues as to its strict compliance with RPAPL 1304"
(Aurora Loan Servs., LLC v Weisblum, 85 A.D.3d 95,
in moving for summary judgment, the plaintiff failed to
submit an affidavit of service or proof of mailing by the
post office evincing that it properly served the defendant
pursuant to RPAPL 1304 (see CitiMortgage, Inc. v
Pappas, 147 A.D.3d 900; Bank of N.Y. Mellon v
Aquino, 131 A.D.3d at 1186; Deutsche Bank Natl.
Trust Co. v Spanos, 102 A.D.3d 909, 910). Moreover,
contrary to the plaintiffs contention, the unsubstantiated
and conclusory statement of a vice president of the plaintiff
that "a 90-day default letter was sent in accordance
with [ ] RPAPL 1304" was insufficient to establish that
the required notice was mailed to the defendant by
first-class and certified mail (see Cenlar, FSB v
Weisz, 136 A.D.3d 855, 856; cf. Flagstar Bank, FSB v
Mendoza, 139 A.D.3d 898, 900; Citimortgage, Inc. v
Espinal, 134 A.D.3d 876, 878). Since the plaintiff
failed to satisfy its prima facie burden with respect to
RPAPL 1304, its motion for summary judgment should have been
denied regardless of the sufficiency of the defendant's
opposition papers (see Winegrad v New York Univ. Med.
Ctr., 64 N.Y.2d 851, 853).
of our determination, we need not address the ...