Opinion
1683-2014
05-20-2019
BAYVIEW LOAN SERVICING LLC, a Delaware Limited Liability Company, Plaintiff, v. Christopher TURNER a/k/a Christopher G. Turner a/k/a Christophe Turner a/k/a Christoph G. Turner; Christine Turner a/k/a Christine R. Turner; Mortgage Electronic Registration Systems, Inc. as Nominee for GMAC Mortgage Corporation dba Ditech.com; Capital One Bank (USA), N.A.; Petro, Inc.; Clerk of the Suffolk County District Court, Defendants.
GREENSPOON MARDER, LLP, Attorneys for Plaintiff, By: Thomas J. Frank, Esq., IBM Building, 590 Madison Avenue, suite 1800, New York, NY 10022 YOUNG LAW GROUP, PLLC, Attorney for Defendant-Christopher Turner, By: Ivan Young, Esq., 80 Orville Drive, Suite 100, Bohemia, NY 11716 CHRISTINE TURNER A/K/A CHRISTINE R. TURNER, Self Represented Defendant in Default
GREENSPOON MARDER, LLP, Attorneys for Plaintiff, By: Thomas J. Frank, Esq., IBM Building, 590 Madison Avenue, suite 1800, New York, NY 10022
YOUNG LAW GROUP, PLLC, Attorney for Defendant-Christopher Turner, By: Ivan Young, Esq., 80 Orville Drive, Suite 100, Bohemia, NY 11716
CHRISTINE TURNER A/K/A CHRISTINE R. TURNER, Self Represented Defendant in Default
Robert F. Quinlan, J.
Upon the following papers numbered 1 to 88 read on this successive motion for summary judgment by plaintiff upon the limited issues set by the court's order of June 12, 2017 and defendant's cross-motion for summary judgment seeking dismissal: Notice of Motion and supporting papers 1-32 ; Notice of Cross Motion and opposition 34-75 ; Affirmations and supporting papers in opposition and reply 76-88 ; it is
ORDERED that the portion of plaintiff Bayview Loan Servicing LLC, a Delaware Limited Liability Corporation's successive motion for summary judgment (Mot. Seq. #003) on the limited issues remaining for trial set by the court's decision placed on the record on June 12, 2017 (Mot. Seq. #001 and Mot. Seq. #002), seeking to establish defendant Christopher Turner's default in payment and to substitute Cascade Funding Mortgage Trust 2017-1 as plaintiff is granted; and it is further
ORDERED that the portion of plaintiff Bayview Loan Servicing LLC, a Delaware Limited Liability Corporation's motion to amend the caption to remove the "JOHN DOE" defendant is moot, as the court's order of June 12, 2017 had already granted that relief and the amended caption was set forth as "Exhibit A" to the written Discovery and Scheduling Order issued by the court on June 12, 2017; and it is further
ORDERED that as that portion of plaintiff Bayview Loan Servicing LLC, a Delaware Limited Liability Corporation's the motion to substitute Cascade Funding Mortgage Trust 2017-1 as plaintiff in its place is granted, the caption is amended as below:
X
CASCADE FUNDING MORTGAGE TRUST 2017-1,
Plaintiff,
against
CHRISTOPHER TURNER A/K/A CHRISTOPHER G. TURNER A/K/A CHRISTOPHE TURNER A/K/A CHRISTOPH G. TURNER; CHRISTINE TURNER A/K/A CHRISTINE R. TURNER; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR GMAC MORTGAGE CORPORATION DBA DITECH.COM; CAPITAL ONE BANK (USA), N.A.; PETRO, INC.; CLERK OF THE SUFFOLK COUNTY DISTRICT COURT,
Defendants.
X;
and it is further
ORDERED that plaintiff is to serve a copy of this order upon the calendar clerk of this part within thirty (30) days of this order, and all further proceedings are to be under the amended caption; and it is further
ORDERED that the portion of plaintiff's successive motion for summary judgment seeking to dismiss defendant Christopher Turner's third affirmative defense raising compliance with the mailing requirements of RPAPL § 1304 and upon such dismissal to grant judgment dismissing and striking defendant's answer and to appoint a referee to compute pursuant to RPAPL § 1321 is denied; and it is further
ORDERED that the proposed order submitted by plaintiff with its motion is marked "Not Signed;" and it is further
ORDERED that defendant Christopher Turner's cross-motion for summary judgment (Mot. Seq. #004) seeking dismissal of the action on the grounds that plaintiff failed to mail the default notice required by the mortgage and the notices required by the RPAPL § 1304 is denied; and it is further
ORDERED that the limited issue trial set by the order of June 12, 2017 shall now only address the issue of plaintiff's compliance with the mailing of the notices required by RPAPL § 1304 ; and it is further
ORDERED that the limited issue trial is set for Friday, August 2, 2019 at 9:30 AM before this part.
PRIOR PROCEEDINGS
This is an action to foreclose a mortgage on residential real property located at 93 Old Brook Road, Dix Hills, Suffolk County, New York given by defendants Christopher Turner and Christine Turner to a predecessor in interest to plaintiff Bayview Loan Servicing LLC, a Delaware Limited Liability Corporation ("plaintiff") to secure a note given by defendant Christopher Turner ("defendant"). The prior history of this action is contained in the court's decision set forth on the record on June 12, 2017 after oral argument of plaintiff's prior motion for summary judgment (Mot. Seq. #001) and defendant's cross-motion to dismiss (Mot. Seq. #002). At that time the court granted plaintiff partial summary judgment pursuant to CPLR 3212 (g), amending the caption, setting the default of the non-appearing, non-answering defendants including defendant Christine Turner, and dismissing all of defendant's affirmative defenses except defendant's 3rd affirmative defense as questions of fact remained as to plaintiff's compliance with the mailing requirements of RPAPL § 1304 and plaintiff's proof of defendant's default in payment under the terms of the note and mortgage. Pursuant to CPLR § 2218, the court set these remaining issues for a limited issue trial, issued a written discovery and scheduling order, set a compliance/certification conference for December 6, 2017 and authorized the parties to file successive summary judgment motions on those issues within 60 days of the filing of a note of issue. At the compliance conference of December 6, 2017, the court signed the certification/compliance order and scheduled a pre-trial conference for February 6, 2018.
Plaintiff filed a note of issue on January 5, 2018, and then filed a successive summary judgment motion which was mailed to the court on March 6, 2018, originally returnable March 29, 2018, but adjourned by the parties. Pursuant to stipulations between the parties plaintiff's motion was adjourned to May 3, 2018 and then to June 7, 2018. By letter dated June 1, 2018 the parties notified the court of an agreed upon "briefing schedule" that adjourned plaintiff's motion to June 28, 2018, allowing defendant to file opposition and/or cross-motion by June 14, 2018 and plaintiff to file a reply by June 28, 2018. Defendant filed opposition and cross-motion on June 14, 2018, and plaintiff filed its reply on June 28, 2018, at which time the motion was submitted. By faxed letter dated June 28, 2018 defendant requested time to file a reply to plaintiff's opposition to his cross-motion, but as the briefing schedule agreed to by the parties did not so provide the court refused the request and the motion was marked submitted.
TIMELINESS OF SUCCESSIVE SUMMARY JUDGMENT MOTIONS
Although multiple motions for summary judgment are discouraged without a showing of newly discovered evidence, or other sufficient cause, a court may properly entertain a subsequent summary judgment motion when it is substantively valid and when granting the motion will further the ends of justice while eliminating an unnecessary burden on court resources (see Detko v. McDonald's Restaurants of New York, Inc , 198 Ad2d 208 [2d Dept 1993] ; Valley National Bank v. INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012] ; Graham v. City of New York, 136 AD3d 754 [2d Dept 2016] ; Kolel Damsek Eliezer, Inc. v. Schlesinger , 139 AD3d 810 [2d Dept 2016] ). It is clearly appropriate to consider a second summary judgment motion where the court has already granted a party partial summary judgment and limited the issues to a few, or where such a motion would correct a simple defect, eliminating the burden on judicial resources which would otherwise require a trial (see Rose v. Horton Med. Ctr ., 29 AD3d 977 [2d Dept 2006] ; Landmark Capital Investments, Inc. v. Li-Shan Wang , 94 AD3d 418 [1st Dept 2012] ). The denial of a subsequent summary judgment motion which could be dispositive for the sole reason of the prohibition against second summary judgment motions has been held to be an improvident exercise of the court's discretion (see Burbige v. Siben & Ferber , 152 AD3d 641 [2d Dept 2017] ). As the issues remaining before the court lend themselves to resolution by a successive summary judgment motion, the court had hoped that by authorizing subsequent summary judgment motions the necessity of a limited issue trial be would avoided.
An argument could be made that defendant's cross-motion is untimely as the general prohibition against considering late summary judgment motions applies not just to "stand alone" summary judgment motions, but to also cross-motions for summary judgment (see Podlaski v. Long Island Paneling Center of Centereach, Inc. , 58 AD3d 825 [2d Dept 2009] ; Medina v. R.M. Resources , 107 AD3d 859 [2d Dept 2013] ). As a successive summary judgment motion, defendant's cross-motion was filed beyond the time limit set by the court as well as statute ( CPLR 3212 [a] ) and as such should not be considered by the court without a showing of good cause for the delay by defendant (see Goldin v. New York & Presbyt. Hosp ., 112 AD3d 578 [2d Dept 2013] ). There is a recognized exception to this rule where the underlying facts of a "timely" motion for summary judgment are identical to those addressed by an "untimely" cross-motion, allowing the court to consider the untimely motion (see Tapia v. Prudential Richard Albert Realty Org ., 79 AD3d 735 [2d Dept 2010] ; Das v. Sun Wah Rest. , 99 AD3d 752 [2d Dept 2012] ; Vitale v. Astoria Energy II, LLC, 138 AD3d 981 [2d Dept 2016] ; Sikorjak v. City of New York , 168 AD3d 778 [2d Dept 2019] ). That exception applies to that portion of defendant's cross-motion that addresses the RPAPL § 1304 mailings, but not to that portion that addresses a claim of plaintiff's failure to mail the default notice required by the mortgage. That issue was not the subject of the limited issue trial or addressed in plaintiff's motion, therefore that portion of the motion is not based upon the identical facts as plaintiff's motion, and does not fit the criteria for the exception which would allow the court to consider it on that basis (see Lennard v. Khan , 69 AD3d 812 [2d Dept 2010] ; Snolis v. Clare , 81 AD3d 923 [2d Dept 2011] ; Das v. Sun Wah Restaurants , supra ; Sikorjak v. City of New York , supra ; Sikorjak v. City of New York , supra ).
Despite the above, the court will consider all issues raised in the cross-motion as there is no objection raised, and in any event, as set forth below, defendant has waived the issue of plaintiff's compliance with the contractual notice of default by failing to raise it as an affirmative defense in his answer or move to amend his answer to raise it prior to certifying the case ready for trial.
CASCADE SUBSTITUTED AS PLAINTIFF
As plaintiff had established its standing, successfully defeating defendant's challenge to it, as noted in the court's decision of June 12, 2017, and it has provided proof of transfer of the note and mortgage to the substitute plaintiff Cascade Funding Mortgage Trust 2017-1 ("Cascade"), the application to substitute Cascade as plaintiff is granted.
DEFAULT IN PAYMENT OF DEFENDANT ESTABLISHED
Proof of default in payment pursuant to the terms of the note and mortgage is part of plaintiff's prima facie case for foreclosure (see Wells Fargo Bank, N.A. v. DeSouza , 126 AD3d 965 [2d Dept 2015] ; Wells Fargo, NA v. Erobobo , 127 AD3d 1176 [2d Dept 2015] ; Wells Fargo Bank, NA v. Morgan , 139 AD3d 1046 [2d Dept 2016] ). Summary judgment requires the movant to provide affirmative evidence in evidentiary form to establish as a matter of law entitlement to that relief (see Winegrad v. New York University Medical Center , 64 NY2d 851[1985] ; Gilbert Frank Corp. v. Federal Insurance , 70 NY2d 966[1988] ; Torres v. Industrial Container , 305 AD2d 136 [1st Dept 2003] ). Failure to do so requires the denial of the motion regardless of the sufficiency of the opposition (see Jacobsen v. New York City Health & Hospital Corp , 22 NY3d 824 [2014] ; William J. Jenack Estate Appraiser and Auctioneers v. Rabizadeh , 22 NY3d 470 [2013] ).
Based upon recent decisions of the Second Department, arguments can be made that the affidavit of Nicholas J. Raab, an employee of Specialized Loan Servicing LLC ("SLS"), the loan servicer for plaintiff's assignee Cascade, is either insufficient (see Deutsche Bank Trust Co. Ams v. Blount , ––– AD3d ––––, 2019 NY Slip Op 02500 [2d Dept 2019] ) or sufficient (see Bank of NY Mellon v. Gordon , ––– AD3d ––––, 2019 NY Slip Op 02306 [2d Dept 2019] ; Tri-State Loan Acquistions III, LLC v. Litkowski , ––– AD3d ––––, 2019 NY Slip Op 03398 [2d Dept 2019] ) pursuant to CPLR 4518 to establish the default in payment pursuant to the terms of the note and mortgage by defendant.
Even if the court were to apply the rationale in those cases which would find the affidavit and its exhibits sufficient, the business records of one of the apparent prior servicers, Bank of America ("B of A"), supplied with the affidavit and relied upon to establish defendant's default in payment by Mr. Raab commencing with the October 1, 2008 payment and continuing are of questionable value and admissibility. In his affidavit Mr. Raab avers to his familiarity with both SLS's and Cascade's business practices and procedures so as to appear to meet the requirements of CPLR 4518 (a) (see paragraphs 3 and 4 of the Raab affidavit). However, each of the fourteen pages of B of A records submitted as exhibits to Mr. Raab's affidavit and presumed to be among the records of a prior servicer or lender/holder of the loan and therefore "integrated and boarded" into either SLS' business records or Cascade's business records (see paragraphs 5 and 6 of the Raab affidavit) contain the following statement at the bottom of the page:
Notice: Bank of America Home Loans provides you with a detailed report under the terms of your agreement with it. In contrast, the information provided herein is in a user friendly summary format and should not [sic] considered as a report. Among other things, the information may be incomplete, may not provide sufficient detail for your own reporting and audit purposes, may not be real time data, and therefore should not be relied upon by you. (Emphasis added)
As B of A "disclaims" the veracity of this information and advises Mr. Rabb not to rely upon it, his reliance upon it is unfounded, and the court finds that this proof is insufficient to establish defendant's default in payment as plaintiff submission fails to provide affirmative evidence in evidentiary form to establish as a matter of law entitlement to that relief. Defendant does not challenge the sufficiency of Mr. Rabb's affidavit to establish his default in payment on this basis, his counsel only generally attacking the affidavit on the basis that as Mr. Raab's employer, SLS, was not plaintiff's servicer his affidavit was insufficient to support plaintiff's claim. As defendant did not oppose plaintiff's motion to substitute Cascade, which the court grants above, that argument is without merit. Defendant makes no other argument as to insufficiency of the Rabb affidavit, other than it provides insufficient information to establish proof of mailing of the RPAPL § 1304 notices and the default notice required by the mortgage. Despite this, defendant's submission establishes his default in payment.
The court recognizes that although defendant was aware that his alleged default in payment was one of the two issues remaining to be tried, neither he in his affidavit, nor his lawyer in his affirmation, contest this issue in their opposition or cross-motion. Both he and his counsel make arguments addressing the mailing of the notices required by the mortgage and RPAPL § 1304, documents defendant states he did not receive and which he refers to as being "allegedly mailed to me at my home" (see paragraphs 6 and 7 of his affidavit). In contrast, the only reference defendant makes to his default in payment is in paragraph 4 of his affidavit. There in discussing the notices he does so stating "regarding my payment default...." There is no reference to his default as being "alleged," instead his sworn statement in his affidavit openly refers to, and acknowledges, his default in payment. Such an acknowledgment in his submissions is similar to the facts before the court in Pok Rye Kim v. Mars Corp , 102 AD2d 812 (2d Dept 1984) (see also; Jerome Prince, Richardson On Evidence, § 8-215 [Farrell 11th ed 1995]; Farage v. Ehrenberg , 124 AD3d 159 [2d Dept 2014] ), and is a judicial admission. In Pok Rye Kim v. Mars Corp , supra , in opposing one defendant's motion for summary judgment, plaintiff acknowledged that the second defendant was free from responsibility, and provided no evidentiary proof to sustain a claim against the second defendant in opposition to its cross-motion to dismiss, resulting in the dismissal of the claim against the second defendant. Here, defendant acknowledges "my payment default," and offers no evidentiary proof to establish he was not in default in payment, one of the two issues remaining for trial and a subject of plaintiff's motion. The court finds that defendant has acknowledged he was in default in payment at the time the action was commenced. The amount owed is the subject of a subsequent report of a referee to compute and a hearing before the court, but is not a basis to deny plaintiff's motion (see Long Island Savings Bank of Centereach, FSB v. Denkensohm , 222 AD2d 659 [2d Dept 1995] ; Excel Capital Group Corp. v. 225 Ross Street Realty , 165 AD3d 1233 [2d Dept 2018] ).
MAILING OF RPAPL § 1304 NOTICES NOT ESTABLISHED
Plaintiff attempts to establish the mailing of the RPAPL § 1304 notices ("the notices") through the affidavit of Mr. Raab. Mr. Rabb's affidavit establishes his ability to testify to his employer's (SLS) and substituted plaintiff Cascade's business records pursuant to CPLR 4518. But even if the "integration and boarding" of prior lenders/holders and prior servicer's business records into SLS' and Cascade's business records allow him to testify to those records pursuant to CPLR 4518, that alone is insufficient to establish the mailing of the notices. Due proof of the mailing of the notices is established by submission of an affidavit of service (see Emigrant Mortgage Co., Inc. v. Persad, 117 AD3d 676 [2d Dept 2014] ; Investors Savings Bank v. Salas , 152 AD3d 752 [2d Dept 2017] ), an affidavit of mailing (see JPMorgan Chase Bank, NA v. Schott, 130 AD3d 875 [2d Dept 2015] ; Wells Fargo v. Moza, 129 AD3d 946 [2d Dept 2015] ) or through business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed (see Vivane Etienne Med. Care, P.C. v. Country Wide Ins. Co. , 25 NY3d 498 [2015] ; Residential Holding Corp. v. Scottsdale Ins. Co. , 286 AD2d 679 [2d Dept 2001] ); Citimortgage v. Banks , 155 AD3d 936 [2d Dept 2017] ; US Bank, N.A. v. Cope , 167 AD3d 965 [2d Dept 2018] ; Wells Fargo Bank, N. A. v. Heiney , 168 AD3d 1126 [2d Dept 2019] ; Wells Fargo Bank, N.A. v. Taylor , 170 AD3d 921 [2d Dept 2019] ; Bank of New York Mellon v. Gordon, supra ; LNV Corp. v. Sofer , ––– AD3d ––––, 2019 NY Slip Op 02860 [2d Dept 2019] ).
Even if an affiant establishes the ability to testify as to the business records pursuant to CPLR 4518, if the affiant merely states a review of the records establishes the notices were mailed by plaintiff by both regular and certified mail on a certain date, they are unsubstantiated, conclusory and insufficient to establish the mailing required by RPAPL § 1304 (see JPMorgan Chase Bank, N.A. v. Kutch, 142 AD3d 536 [2d Dept 2016] ; Cenlar FSB v. Censor , 139 AD3d 781 [2d Dept 2016] ; US Bank, NA v. Henderson , 163 AD3d 601[ 2d Dept 2018] ). The affiant must show his familiarity with office practices and procedures to establish office practices and procedures to insure proper addressing and mailing (see Citibank, N.A. v. Wood , 150 AD3d 813 [2d Dept 2017] ; Wells Fargo Bank, N.A. v. Moran , 168 AD3d 1128 [2d Dept 2019] ; Fifth Third Mtge. Co. v. Seminario , 168 AD3d 1041 [2d Dept 2019] ; Wells Fargo Bank, N.A. v. Taylor , supra ; Bank of New York Mellon v. Gordon, supra ). Where an affiant established the ability to testify to the employer's and plaintiff's business practices and procedures, as well as their procedures for mailing, if the affiant does not establish familiarity with the mailing practices of the entity which actually mailed the notices, and failed to attach to the affidavit copies of documents that proved the mailing occurred, plaintiff's proof was insufficient to establish the mailings (see CitiBank, N.A. v. Conti-Scheurer , ––– AD3d ––––, 2019 NY Slip Op 02846 [2d Dept 2019] ). Here it is clear that the notices were sent from an entity other than SLS or Cascade, as they are entitled and addressed from Residential Credit Solutions, Inc. ("RCS"). As Mr. Raab's affidavit fails to establish his familiarity with the mailing practices and procedures of RCS, it is insufficient to establish the mailing of the notices to defendant (see LNV Corp. v. Sofer , supra ).
The argument raised by defendant as to the insufficiency of the notices themselves because of an inadequate listing of housing counseling agencies is without merit, as discussed in denying defendant's claims for dismissal below.
That portion of plaintiff's motion seeking to establish the mailing of the RPAPL § 1304 notices and dismissing defendant's 3rd affirmative defense must be denied, as is that portion of plaintiff's motion seeking judgment and the appointment of a referee to compute pursuant to RPAPL § 1321.
DEFENDANT'S CROSS MOTION DENIED -MORTGAGE NOTICE OF DEFAULT WAIVED AS NOT RAISED IN ANSWER
A claim that plaintiff failed to comply with the contractual condition precedent of the mailing of a default notice required by the mortgage is unlike the statutory condition precedent of mailing the notices required by RPAPL 1304 which may be raised at any time (see Aurora Loan Services v. Weisblum , 85 AD3d 95 [2d Dept 2011] ). It must be raised as a defense in either a timely pre-answer motion or as an affirmative defense in an answer. The condition precedent in the mortgage is not jurisdictional, and as it does not deprive the court of jurisdiction, there is no authority for the court to dismiss the action on that basis (see Countrywide Home Loans, Inc. v. Campbell , 164 AD3d 646 [2d Dept 2018] ).
CPLR 3015 (a) requires that denial of performance or occurrence must be made specifically, and with particularization, in a responsive pleading. CPLR 3013 requires that a defense be raised with particularity as to give notice of the elements of each defense. Failure to raise compliance with the condition precedent of mailing/service of the default notice required by the mortgage in an answer, or to move to amend the answer to raise that issue, constitutes a waiver of that claim ( CPLR 3015 [a] ; see First Northern Mtge. Corp v. Yatrakis , 154 AD2d 433 [2d Dept 1989] ; First National Bank, FSB v. Goodman , 272 AD2d 433 [2d Dept 2000] ; Signature Bank v. Epstein , 95 AD3d 1199 [2d Dept 2012] ; Nationstar Mtge., LLC v. Vordermeier , 165 AD3d 822 [2d Dept 2018] ; Wells Fargo Bank, N.A. v. Zucker, 169 AD3d 856 [2d Dept 2019] ). Here defendant did not raise this claim as an affirmative defense, nor has he moved to amend his answer to raise that affirmative defense, therefore, he has waived that defense. Accordingly, that portion of defendant's cross-motion seeking dismissal of the action for failure to comply with the notice of default in the mortgage is denied.
DISMISSAL FOR FAILURE TO COMPLY WITH MAILING OF RPAPL § 1304 NOTICES DENIED
A defendant who moves for summary judgment dismissing the complaint for failure of plaintiff to comply with the mailing requirements of RPAPL § 1304, just as any movant for summary judgment, has the burden to establish plaintiff's failure to comply as a matter of law (see LGF Holdings, LLC v. Skydel, 139 AD3d 814 [2d Dept 2016] ; MLB Sub I, LLC v. Bains , 148 AD3d 881 [2d Dept 2017] ). The proponent of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, providing sufficient evidence to establish the absence of any material issues of fact, failure to do so requires the motion to be denied regardless of the sufficiency of the opposition (see Jacobsen v. New York City Health & Hospitals Corp ., supra ; William J Jenack Estate Appraiser and Auctioneers v. Rabizadeh , supra ). "[T]he summary judgment movant bears the heavy burden of establishing ‘a prima facie showing of entitlement to a judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.’ " (see Deleon v. NY City Sanitation Dept. , 25 NY3d 1102, 1106 [2015] ). As with standing, the burden is not on plaintiff to establish compliance with the mailings for defendant's motion to be denied, it is sufficient if its raises questions of fact (see HSBC Bank USA v. Lewis, 134 AD3d 764 [2d Dept 2015] ; U. S. Bank, Nat. Assoc. v. Noble , 144 AD3d 786 [2d Dept 2016] ; Aurora Loan Servs, LLC v. Komarvsky , 151 AD3d 924 [2d Dept 2017] ). If defendant fails to establish plaintiff's lack of mailing, its motion is to be denied (see Flagstar Bank, FSB v. Campbell , 137 AD3d 853 [2d Dept 2016] ; US Bank N.A. v. Weinman , 123 AD3d 1108 [2d Dept 2014] ).
Defendant's affidavit, at best, only established his non-receipt of the notices, not non-mailing by plaintiff's predecessor. The reasoning and holding of the line of cases relied upon by defendant emanating from Citimortgage v. Pappas , 147 AD3d 900 (2d Dept 2017) have been firmly rejected by more recent decisions which recognize that a simple denial of receipt, without more, is insufficient to establish a prima facie entitlement to judgment as a matter of law dismissing the complaint for failure to comply with the requirements of RPAPL 1304 (see Wells Fargo Bank, N.A. v. Moran , 168 AD3d 1128 [2d Dept 2019] ; Wells Fargo Bank, N.A. v. Taylor , 170 AD3d 921 [2d Dept 2019] ; US Bank N.A. v. Lawson , 170 AD3d 1068 [2d Dept 2019] ; CitiBank, N.A. v. Conti-Scheurer , supra ; LNV Corp. v. Sofer , supra) .
Additionally, defendant's claim of insufficiency in the list of housing counseling agencies is incorrect. At the time the notices were prepared and purportedly mailed in 2013 RPAPL § 1304 (2) required that the notices provide a listing "of at least five housing counseling agencies as designated by the division of housing and community renewal, that serve the region where the borrower resides." (Emphasis added). At that time Suffolk County was part of the Long Island Region which also included Nassau County. It was not until the amendment to RPAPL § 1304 (2) effective December 20, 2016 that the counseling agencies were required to be in the county where the property was located. The agencies listed along with the notices included four in Suffolk County and two in Nassau County, clearly complying with the statutory requirement in 2013, and defendant's argument that there must be at least five listed from Suffolk County is without merit.
Accordingly, that portion of defendant's cross-motion seeking dismissal of the action for failure to comply with the mailing of the notices required by RPAPL § 1304 is denied.
LIMITED ISSUE TRIAL SET
As there have now been two opportunities to file summary judgment motions and the case has been noticed for trial, the court will not entertain any further summary judgment motions and the case is scheduled for a limited issue trial, now limited solely to the issue of plaintiff's proof of compliance with the mailing requirements of the notices required by RPAPL § 1304. That trial is set for Friday, August 2, 2019 at 9:30 AM before this part.
This constitutes the Order and decision of the Court.