Wells Fargo Bank, N.A., etc., respondent, v. James Moran, appellant, et al., defendants.

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

Wells Fargo Bank, N.A., etc., respondent, v. James Moran, appellant, et al., defendants.

2016–10613

Decided: January 30, 2019

REINALDO E. RIVERA, J.P. MARK C. DILLON JEFFREY A. COHEN ANGELA G. IANNACCI, JJ. James Moran, Bethpage, NY, appellant pro se.

Argued—June 21, 2018

DECISION & ORDER

In an action to foreclose a mortgage, the defendant James Moran appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered September 13, 2016.  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 James Moran and for an order of reference, and denied the cross motion of the defendant James Moran, inter alia, for summary judgment dismissing the complaint insofar as asserted against him.

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 James Moran 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, without costs or disbursements.

The plaintiff commenced this mortgage foreclosure action against, among others, the defendant James Moran (hereinafter the defendant).  The defendant interposed an answer and asserted various affirmative defenses.  Thereafter, the plaintiff 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, inter alia, for summary judgment dismissing the complaint insofar as asserted against him.  The Supreme Court granted the plaintiff's motion and denied the defendant's cross motion.  The defendant appeals, arguing, inter alia, that the court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and for an order of reference and granted that branch of his cross motion which was for summary judgment dismissing the complaint insofar as asserted against him due to the plaintiff's failure to strictly comply with RPAPL 1304.

Here, in support of its motion, the plaintiff failed to demonstrate, prima facie, its compliance with the requirements of RPAPL 1304.  In this regard, 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.  Contrary to the plaintiff's contention, its submission of an affidavit of the employee of its servicer was not sufficient to establish that the notices were sent to the defendant in the manner required by RPAPL 1304.  While mailing may be proved by documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518 (see HSBC Bank USA, N.A. v. Ozcan, 154 AD3d 822, 827), here, the affiant did not aver that he was familiar with the servicer'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 U.S. Bank N.A. v. Henry, 157 AD3d 839, 841–842;  Wells Fargo Bank, N.A. v. Lewczuk, 153 AD3d 890, 892;  M & T Bank v. Joseph, 152 AD3d 579, 580;  Citibank, N.A. v. Wood, 150 AD3d 813, 814).  The affiant's unsubstantiated and conclusory statements were insufficient to establish that the RPAPL 1304 notice was mailed to the defendant by first-class and certified mail (see U.S. Bank N.A. v. Henry, 157 AD3d at 841–842;  Wells Fargo Bank, N.A. v. Lewczuk, 153 AD3d at 892;  M & T Bank v. Joseph, 152 AD3d at 580;  Citibank, N.A. v. Wood, 150 AD3d at 814).  Accordingly, the Supreme Court should have denied 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, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

However, contrary to the defendant's contention, he did not establish his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him on the ground that the plaintiff failed to comply with the notice requirements of RPAPL 1304 (see HSBC Bank USA, N.A. v. Ozcan, 154 AD3d at 828).

The defendant's remaining contentions are without merit.

RIVERA, J.P., DILLON, COHEN and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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