- October 27, 2017
Law Group, P.C., New York, NY (Steven A. Biolsi and Juan
Paolo F. Dizonof counsel), for appellant.
& Eisenberg, P.C., Depew, NY (Margaret J. Cascino and
Nicole M. Falcey of counsel), for respondent.
E. CHAMBERS, J.P. JEFFREY A. COHEN BETSY BARROS LINDA
DECISION & ORDER
from an order of the Supreme Court, Kings County (Graham,
J.), entered December 21, 2015. The order, insofar as
appealed from, granted those branches of the plaintiffs
motion which were to extend the time to move for summary
judgment, for summary judgment on the complaint insofar as
asserted against the defendant Eleanor Zavolunov, and for an
order of reference.
that the order is modified, on the law, by deleting the
provisions thereof granting those branches of the plaintiff s
motion which were for summary judgment on the complaint
insofar as asserted against the defendant Eleanor Zavolunov
and for an order of reference, and substituting therefor a
provision denying those branches of the motion; as so
modified, the order is affirmed insofar as appealed from,
with costs to the defendant Eleanor Zavolunov.
plaintiff commenced this action against the defendant Eleanor
Zavolunov (hereinafter the defendant), among others, to
foreclose a mortgage on certain real property in Brooklyn.
The defendant interposed an answer asserting various
affirmative defenses, including lack of standing. Thereafter,
the plaintiff moved, inter alia, for an extension of time to
move for summary judgment, for summary judgment on the
complaint insofar as asserted against the defendant, and for
an order of reference. The defendant opposed the motion,
arguing that the motion was untimely under NY Kings County
Supreme Court Uniform Civil Term Rules Pt. C, Rule 6. The
defendant asserted, in the alternative, that the plaintiff
failed to eliminate triable issues of fact as to its standing
to commence the action, and failed to demonstrate its strict
compliance with RPAPL 1304. The Supreme Court, inter alia,
granted those branches of the plaintiffs motion, and the
to the defendant's contention, the Supreme Court
providently exercised its discretion in granting that branch
of the plaintiffs motion which was to extend the time to move
for summary judgment, as the plaintiff demonstrated good
cause for making the motion more than 60 days after the
filing of the note of issue, as required by NY Kings County
Supreme Court Uniform Civil Term Rules Pt. C, Rule 6 (see
Popalardo v Marino, 83 A.D.3d 1029, 1030; Ramos v
Triboro Coach Corp., 31 A.D.3d 625; see also
DeFilippo v Miller, 106 A.D.3d 770).
the Supreme Court erred in granting those branches of the
plaintiffs motion which were for summary judgment on the
complaint insofar as asserted against the defendant and for
an order of reference. ''Generally, in moving for
summary judgment in an action to foreclose a mortgage, a
plaintiff establishes its prima facie case through the
production of the mortgage, the unpaid note, and evidence of
default" (Plaza Equities, LLC v Lamberti, 118
A.D.3d 688, 689; see Deutsche Bank Natl. Trust Co. v
Brewton, 142 A.D.3d 683, 684). Furthermore, where the
plaintiff in a residential foreclosure action alleges in its
complaint that it has served an RPAPL 1304 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, 106).
1304(1), which applies to home loans, 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." The statute sets forth the requirements for
the content of such notice (see id.), and provides that such
notice must be sent by registered or certified mail and by
first-class mail to the last known address of the borrower
and to the subject residence (see RPAPL 1304).
"[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 A.D.3d at 106; see
Citibank, N.A. v Wood, 150 A.D.3d 813, 814; Flagstar
Bank, FSB v Damaro, 145 A.D.3d 858, 860).
the plaintiff failed to establish, prima facie, that it
complied with the requirements of RPAPL 1304 (see M&T
Bank v Joseph, 152 A.D.3d 579; CitiMortgage, Inc. v
Pappas, 147 A.D.3d 900; Bank of N.Y. Mellon v
Aquino, 131 A.D.3d 1186, 1186; Deutsche Bank Natl.
Trust Co. v Spanos, 102 A.D.3d 909, 910). In moving for
summary judgment, the plaintiff submitted the affidavit of
Jason Ussery, a representative of its loan servicer, who
stated that "[a]t least 90 days prior to the
commencement of the action, notice was sent to Defendant by
certified mail and first class mail to the last known address
of the Defendant and, if different, to the residence that is
the subject of the mortgage." Ussery annexed copies of
the 90-day notices mailed to the defendant, all of which
contained a bar code with a 20-digit number below it, but no
language indicating that a mailing was done by first-class or
certified mail, or even that a mailing was done by the U.S.
Postal Service (see Wells Fargo Bank, N.A. v Trupia,
150 A.D.3d 1049). Moreover, Ussery did not make the requisite
showing that he was familiar with the plaintiffs 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" (id. at 1050-1051; see Wells Fargo
Bank, N.A. v Lewczuk, 153 A.D.3d 890; Citibank, N.A.
v Wood, 150 A.D.3d 813; CitiMortgage, Inc.
vPappas, 147 A.D.3d at 901).
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 defendant and for an order of reference,
regardless of the ...