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ALTHOUGH PLAINTIFF BANK DID NOT PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, THE DEFENDANT DID NOT PROVE PLAINTIFF DID NOT COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department determined that, although plaintiff bank did not prove compliance with the notice requirements of RPAPL 1304, defendant did not prove plaintiff failed to comply with the notice requirements of RPAPL 1304:

“Even in the face of a plaintiff’s failure to establish, prima facie, that a notice was properly mailed on a motion for summary judgment on the complaint, . . . a defendant still has to meet its burden, on a cross motion for summary judgment dismissing the complaint, of establishing that the condition precedent was not fulfilled” … . …

… [W]hile RPAPL 1304 provides that “[t]he notices required by this section shall be sent . . . to the last known address of the borrower, and to the residence that is the subject of the mortgage” (RPAPL 1304[2]), the defendant did not allege, or provide any evidence, that the lender knew her address had changed. Wells Fargo Bank, N.A. v Tricario, 2020 NY Slip Op 01112, Second Dept 2-13-20

 

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