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IN THIS FORECLOSURE ACTION, THE BANK’S FAILURE TO EXPLAIN WHY AN AFFIDAVIT DEMONSTRATING THE NOTICE OF DEFAULT WAS PROPERLY MAILED WAS NOT SUBMITTED WITH THE INITIAL MOTION FOR SUMMARY JUDGMENT PRECLUDED A MOTION FOR LEAVE TO RENEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for leave to renew in this foreclosure action should not have been granted. Supreme Court initially denied the bank’s motion for summary judgment because the proof the notice of default was properly mailed was insufficient. The bank made a motion for leave to renew and submitted an affidavit which Supreme Court deemed sufficient. The Second Department held that the bank’s failure to explain why the affidavit wasn’t produced for the bank’s initial motion precluded renewal:

In support of that branch of its motion which was for leave to renew, the plaintiff submitted the affidavit of Alicia Hernandez, who averred that the required notice of default was mailed by first-class mail and that the address to which the notice of default was sent was the actual notice address. The only explanation offered by the plaintiff for its failure to submit the Hernandez affidavit on its prior motion was that it reasonably believed that the evidentiary submission it had made on the prior motion was sufficient to establish its prima facie case. This contention is devoid of merit. “A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance” … . In the instant matter, the plaintiff failed to demonstrate any valid reason why the Hernandez affidavit could not have been submitted on its prior motion. Since the Hernandez affidavit was submitted without demonstrating a reasonable justification for failing to submit it on the prior motion, renewal should have been denied … . JPMorgan Chase Bank N.A. v EY Bay Ridge, LLC, 2023 NY Slip Op 00311, Second Dept 1-25-23

Practice Point: Here in this foreclosure action, the bank’s failure to explain why proof of proper mailing of the notice of default was not presented in the initial summary judgment motion required the denial of the bank’s motion for leave to renew.

 

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