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AT THE FORECLOSURE TRIAL, THE BANK DEMONSTRATED THE RPAPL 1304 NOTICE OF FORECLOSURE WAS SENT TO DEFENDANT BY CERTIFIED MAIL BUT FAILED TO PROVE THE NOTICE WAS ALSO SENT BY REGULAR MAIL; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof of mailing of the RPAPL 1304 notice in this foreclosure action was insufficient:

“A plaintiff can establish strict compliance with RPAPL 1304 by submitting domestic return receipts, proof of a standard office procedure designed to ensure that items are properly addressed and mailed, or an affidavit from someone with personal knowledge that the mailing of the RPAPL 1304 notice actually happened” … . Here, although the certified mailing receipt bearing the defendant’s signature upon delivery was sufficient to establish the mailing of one notice by certified mail … , the label submitted as proof of the regular first-class mailing, with no postage, no address of intended recipient, “no indicia of actual mailing such as postal codes and . . . [no] mailing receipts or tracking information” … , was insufficient to establish that the notice was actually mailed by regular first-class mail … . Since the plaintiff also failed to submit “proof of a standard office procedure designed to ensure that items are properly addressed and mailed,” or testimony “from someone with personal knowledge that the mailing of the RPAPL 1304 notice actually happened” … , the plaintiff failed to establish its strict compliance with RPAPL 1304 at the nonjury trial … . Bank of N.Y. Mellon v Robustello, 2026 NY Slip Op 00340, Second Dept 1-28-26

Practice Point: The RPAPL 1304 notice of foreclosure requirements must be strictly complied with. Here, at trial, the bank proved the RPAPL 1304 notice was sent by certified mail and received by the defendant, but the bank failed to prove the RPAPL 1304 notice was also sent by regular mail. The complaint was dismissed.

 

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