The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice provisions of the Real Property Actions and Proceedings Law (RPAPL). Therefore the bank’s summary judgment motion should not have been granted:
… [T]he plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304 … .. 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 … . Moreover, Ussery did not make the requisite showing 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” … . Bank of N.Y. Mellon v Zavolunov, 2018 NY Slip Op 00271, Second Dept 1-17-18
FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, NOTICE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))