DEUTSCHE BANK NATIONAL TRUST COMPANY v. BLACKMAN (2022)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jean Blackman appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated October 24, 2018.  The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Jean Blackman and for an order of reference, and denied that branch of that defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Jean Blackman 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 Jean Blackman.

On June 15, 2004, the defendant Jean Blackman (hereinafter the defendant) executed a note, promising to repay a loan in the sum of $243,000, which was secured by a mortgage on real property located in Brooklyn.  The mortgage was subsequently assigned to the plaintiff.

In 2016, the plaintiff commenced this foreclosure action.  The defendant answered the complaint, asserting several affirmative defenses, including that the plaintiff lacked standing.  The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  The defendant opposed the motion and cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against her based on the plaintiff's lack of standing, as well as its failure to comply with RPAPL 1303 and 1304.  In an order dated October 24, 2018, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied that branch of the defendant's cross motion.  The defendant appeals.

Contrary to the defendant's contention, by annexing to the complaint a copy of the note, endorsed to the plaintiff, the plaintiff established, prima facie, that “it had physical possession of the note when it commenced the action” (U.S. Bank N.A. v. Fisher, 169 A.D.3d 1089, 1090–1091, 95 N.Y.S.3d 114;  see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185), and thus, that it had standing to foreclose.  “Further, where the note is affixed to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date” (U.S. Bank N.A. v. Fisher, 169 A.D.3d at 1091, 95 N.Y.S.3d 114 [internal quotation marks omitted];  see Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d 861, 863, 45 N.Y.S.3d 189;  JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645, 37 N.Y.S.3d 286).  In opposition, the defendant's submissions failed to raise a triable issue of fact.

The plaintiff also established, prima facie, its compliance with RPAPL 1303 by submitting an affidavit of service establishing proper service upon the defendant of the notice required by the statute.  The defendant's bare and unsubstantiated denial of receipt of the notice was insufficient to rebut the presumption of proper service created by the affidavit of service (see Nationstar Mtge., LLC v. Kamil, 155 A.D.3d 968, 968, 63 N.Y.S.3d 890).

Nevertheless, the plaintiff failed to demonstrate, prima facie, that the requirements of RPAPL 1304 do not apply to the subject loan (see Nationstar Mtge., LLC v. Jong Sim, 197 A.D.3d 1178, 154 N.Y.S.3d 73), or, alternatively, that it strictly complied with RPAPL 1304.  Although the plaintiff submitted copies of the 90–day notices purportedly sent to the defendant, the plaintiff failed to demonstrate, prima facie, that the notices were actually mailed, through either an affidavit of service, other proof of mailing by the United States Postal Service, or evidence 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 (see U.S. Bank N.A. v. Hammer, 192 A.D.3d 846, 847–848, 143 N.Y.S.3d 695;  U.S. Bank N.A. v. Moulton, 179 A.D.3d 734, 739, 116 N.Y.S.3d 86;  Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 20, 98 N.Y.S.3d 273).  The assertion in an affidavit of an employee of the plaintiff's loan servicer that the 90–day notices were sent in accordance with RPAPL 1304 was insufficient to establish that the notices were actually mailed to Blackman by first-class and certified mail.  The affiant based his assertions upon his review of records which were created by a third-party vendor, and as those business records were not incorporated into the servicer's own electronic files, they were inadmissible hearsay (see Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 209, 97 N.Y.S.3d 286).  “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” (Deutsche Bank Natl. Trust Co. v. Elshiekh, 179 A.D.3d 1017, 1021, 118 N.Y.S.3d 183;  see Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 205, 97 N.Y.S.3d 286).  Thus, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference should have been denied.

The Supreme Court properly denied that branch of the defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against her.  The defendant failed to meet her initial burden of demonstrating the absence of a triable issue of fact as to whether the plaintiff complied with RPAPL 1304 (see JPMorgan Chase Bank, N.A. v. Gold, 188 A.D.3d 1019, 1022, 136 N.Y.S.3d 380;  Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 23–24, 98 N.Y.S.3d 273;  see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The defendant's remaining contentions either are without merit or need not be reached in light of our determination.

BARROS, J.P., CHAMBERS, ZAYAS and GENOVESI, JJ., concur.