You are here: / / PROOF OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 13O4 NOTICE...
,

PROOF OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 13O4 NOTICE TO THE DEFENDANT WAS INSUFFICIENT, THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof compliance with the Real Property Actions and Proceedings Law (RPAPL) 1304 notice requirements was insufficient:

“[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” … .The statute requires that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (see RPAPL 1304[2]). By imposing these specific mailing requirements, ” the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing,’ which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof 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'” … .

Here, although Swayze [plaintiff’s vice president] stated in her affidavit that the RPAPL 1304 notice was mailed to Saab [defendant] on May 8, 2013, this assertion falls short of constituting admissible evidence sufficient to demonstrate prima facie that the notice was actually mailed in the manner required by the statute. Swayze did not claim that she personally mailed the notice to Saab. Further, she did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and, therefore, did not establish the existence of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . Central Mtge. Co. v Canas, 2019 NY Slip Op 04909, Second Dept 6-19-19

 

You might also like
CANCELLATION AND DISCHARGE OF A MORTGAGE PURSUANT TO RPAPL 1501 (4) MUST BE SOUGHT BY AN ACTION OR COUNTERCLAIM, NOT BY A MOTION (SECOND DEPT).
PROBATIONARY CITY EMPLOYEE WAS NOT GIVEN SEVEN DAYS NOTICE OF HIS TERMINATION, REMEDY IS TO PAY THE EMPLOYEE FOR THE SEVEN DAYS (SECOND DEPT).
Detective’s Testimony About Statement Made by Nontestifying Co-Defendant Violated Defendant’s Right of Confrontation
Answering Juror’s Question Outside Presence of Defendant, Counsel and Other Jurors Required Reversal.
Supreme Court Properly Denied a Motion to Approve a Settlement of a Proposed Non-Opt-Out Class Action—Shareholders Who Objected to the Settlement Were Entitled to Opt Out to Preserve Their Damages Claims
FATHER’S PETITION TO SUSPEND CHILD SUPPORT WAS PROPERLY DISMISSED BUT THE DISMISSAL SHOULD NOT HAVE BEEN “WITH PREJUDICE” BECAUSE FAMILY COURT HAS CONTINUING JURISDICTION OVER SUPPORT MATTERS (SECOND DEPT).
Imposition of Enhanced Sentence for Defendant’s Tardiness Disallowed
BECAUSE THE COURT DID NOT IMPOSE CONDITIONS ON THE PLEAS AND SENTENCING COMMITMENTS, THE SENTENCE SHOULD NOT HAVE BEEN ENHANCED BASED ON THE PURPORTED VIOLATIONS OF CERTAIN CONDITIONS, INCLUDING THE DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT CONSIDERED IT IN THE INTEREST OF JUSTICE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PROCESS SERVER’S AFFIDAVIT OF SERVICE WAS REBUTTED BY SUFFICIENT EVIDENCE... DEFENDANT WAS NOT PROPERLY NOTIFIED OF THE ALLEGED VIOLATIONS OF PROBATION AND...