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BANK EMPLOYEE’S AFFIDAVIT DID NOT DEMONSTRATE 90 DAY NOTICE WAS PROPERLY SERVED.

The Second Department determined plaintiff bank did not demonstrate compliance with Real Property Actions and Proceedings Law (RPAPL) 1304 in serving the 90-day notice. The documents submitted by plaintiff’s employee (Gantner) did not meet the requirements of the business records exception to the hearsay rule:

Here, 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, Gantner’s affidavit and attached business records were not sufficient to establish that the notices were sent to the defendant in the manner required by RPAPL 1304. While mailing may be proven by documents meeting the requirements of the business records exception to the rule against hearsay under CPLR 4518 … , here, Gantner did not aver that he 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 … . Therefore, Gantner’s unsubstantiated and conclusory statements were insufficient to establish that the 90-day notice required by RPAPL 1304 was mailed to the defendant by first-class and certified mail … . CitiMortgage, Inc. v Pappas, 2017 NY Slip Op 01177. 2nd Dept 2-15-17

FORECLOSURE (BANK EMPLOYEE’S AFFIDAVIT DID NOT DEMONSTRATE 90 DAY NOTICE WAS PROPERLY SERVED)/EVIDENCE (FORECLOSURE, BANK EMPLOYEE’S AFFIDAVIT DID NOT DEMONSTRATE 90 DAY NOTICE WAS PROPERLY SERVED)

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