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AN AFFIDAVIT WITHOUT THE RELEVANT BUSINESS RECORDS ATTACHED DID NOT DEMONSTRATE THE BANK’S COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the mailing requirements of RPAPL 1304 and therefore should not have been awarded summary judgment:

… [A]lthough the plaintiff submitted a copy of the 90-day notice purportedly sent to the defendant by Green Tree [the loan servicer], it failed to demonstrate, prima facie, that the notice was actually mailed, either through an affidavit of mailing, other proof of mailing by the post office, or evidence of a standard office mailing procedure. Instead, the plaintiff merely submitted an affidavit from a representative of its attorney-in-fact, averring that the 90-day notice was sent by Green Tree in accordance with RPAPL 1304. That conclusory, unsubstantiated averment, standing alone, was insufficient to establish that the notice was actually mailed to the defendant by first-class and certified mail … . Moreover, the affiant based his assertions upon his review of unspecified business records without attaching any such business records to his affidavit … . “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Wilmington Sav. Fund Socy., FSB v Fernando, 2022 NY Slip Op 05231, Second Dept 9-21-22

Practice Point: In a foreclosure action, at the summary judgment  stage, proof the notice of foreclosure was mailed in accordance with RPAPL 1304 cannot be demonstrated by an affidavit which refers to documents that are not attached.

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