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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the notice requirements of RPAPL 1304. Therefore the bank’s motion for summary judgment should not have been granted:

… [T]he plaintiff submitted, inter alia, the affidavit of Ray Thacker, a vice president of the plaintiff, based upon his review of his employer’s records, which were attached thereto. However, Thacker’s affidavit contained no statement as to Thacker’s personal familiarity with the mailing practices of his employer … .

Moreover, although Thacker’s affidavit laid a proper foundation for the admission of the business records which were attached thereto (see CPLR 4518[a] …), the content of those records did not demonstrate, prima facie, that the requisite RPAPL 1304 mailings were completed. The copies of letters addressed to the defendant, bearing 20-digit bar codes, were insufficient to demonstrate, prima facie, that the certified mailing or first class mailing actually occurred … . The “Proof of Filing Statement” from the New York State Banking Department, pursuant to RPAPL 1306, reflecting a tracking number, a “Mailing Date Step 1” of May 16, 2012, and a “Filing Date Step 1” of May 17, 2012, also was insufficient to demonstrate, prima facie, the plaintiff’s compliance with all of the requirements of RPAPL 1304 … . JPMorgan Chase Bank, Natl. Assn. v Gershfeld, 2020 NY Slip Op 05895, Second Dept 10-21-20

 

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Criteria for Downward Departure (SORA)​

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