Opinion
Nos. 2022-09658 2022-09659 Index No. 620688/18
05-22-2024
Deutsche Bank National Trust Company, etc., respondent, v. Vilma Guevara, appellant, et al., defendants.
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant. Davidson Fink LLP, Rochester, NY (Todd Z. Marks of counsel), for respondent.
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant.
Davidson Fink LLP, Rochester, NY (Todd Z. Marks of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P. ANGELA G. IANNACCI LARA J. GENOVESI LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Vilma Guevara appeals from two orders of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), both dated March 5, 2020. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Vilma Guevara and dismissing that defendant's third affirmative defense, alleging that the plaintiff failed to strictly comply with RPAPL 1304, and for an order of reference. The second order, insofar as appealed from, granted the same relief, struck that defendant's answer, and appointed a referee to ascertain and compute the amount due to the plaintiff.
ORDERED that the orders are reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Vilma Guevara and dismissing that defendant's third affirmative defense, alleging that the plaintiff failed to strictly comply with RPAPL 1304, and for an order of reference are denied.
In an order dated December 31, 2019, the Supreme Court, in effect, referred for a framed-issue hearing those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Vilma Guevera (hereinafter the defendant) and dismissing the defendant's third affirmative defense, alleging that the plaintiff failed to strictly comply with RPAPL 1304, and for an order of reference.
The framed-issue hearing was held before the Supreme Court on March 5, 2020. At the outset, the defendant requested an adjournment, which the court denied. During the hearing, the plaintiff relied on various documents and testimony from an employee of its loan servicer. After the hearing, the court determined that the plaintiff sufficiently demonstrated strict compliance with RPAPL 1304. In an order dated March 5, 2020, the court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and dismissing the defendant's third affirmative defense, and for an order of reference. In a second order dated March 5, 2020, the court, among other things, granted the same relief, struck the defendant's answer, and appointed a referee to ascertain and compute the amount due to the plaintiff. The defendant appeals from both orders.
On appeal, the plaintiff contends that the defendant has failed to assemble an adequate record. It is the obligation of the appellant to assemble a proper record on appeal (see Wilmington Trust Co. v Buscemi, 207 A.D.3d 503, 505). An appellant's record must contain all of the relevant papers that were before the Supreme Court (see CPLR 5526; Wilmington Trust Co. v Buscemi, 207 A.D.3d at 505). Here, the plaintiff has not demonstrated that the appellate record is inadequate (see Deutsche Bank Natl. Trust Co. v Musheyev, 203 A.D.3d 1027, 1029).
The granting of an adjournment for any purpose rests within the sound discretion of the Supreme Court, and its determination will not be disturbed absent an improvident exercise of that discretion (see U.S. Bank N.A. v Sokolof, 201 A.D.3d 839, 840; Bayview Loan Servicing, LLC v Chaudhury, 188 A.D.3d 1126, 1127). Contrary to the defendant's contention, the court did not improvidently exercise its discretion in denying her request for an adjournment.
However, the Supreme Court improperly determined that at the framed-issue hearing, the plaintiff proved that the required notice was sent in strict compliance with RPAPL 1304. In reviewing a determination made after a hearing, the power of this Court is as broad as that of the hearing court, and this Court may render the judgment it finds warranted by the facts, bearing in mind in a close case that the hearing judge had the advantage of seeing the witnesses and hearing the testimony (see Matter of Government Empls. Ins. Co. v Maio, 219 A.D.3d 1519, 1521).
RPAPL 1304(1) provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower,... including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." "The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower" (Citibank, N.A. v Conti-Scheurer, 172 A.D.3d 17, 20; see RPAPL 1304[2]). Strict compliance with the RPAPL 1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action (see U.S. Bank N.A. v Glasgow, 218 A.D.3d at 719; Citibank, N.A. v Conti-Scheurer, 172 A.D.3d at 20).
The plaintiff can establish strict compliance with RPAPL 1304 by submitting proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure (see U.S. Bank N.A. v Glasgow, 218 A.D.3d at 719; Nationstar Mtge., LLC v Paganini, 191 A.D.3d 790, 794; Citibank, N.A. v Conti-Scheurer, 172 A.D.3d at 20).
Here, the plaintiff failed to establish that the required notice was sent in strict compliance with RPAPL 1304. While the plaintiff presented proof of the actual mailing of the notice by certified mail, the plaintiff failed to present proof of the actual mailing of the notice by first-class mail. The copy of the notice purportedly sent by first-class mail did not include any indicia of first-class mailing, and the business record relied upon to establish that the first-class mailing took place was completely illegible (see U.S. Bank N.A. v 22-33 Brookhaven, Inc., 219 A.D.3d 657, 665; Pennymac Corp. v Levy, 207 A.D.3d 735, 737; Wells Fargo Bank, N.A. v Lewczuk, 153 A.D.3d 890, 892). Further, while the plaintiff's witness testified that he was personally familiar with the plaintiff's servicer's record-keeping system and mailing practices, he never testified as to the procedure for mailing the notices once they were generated. Thus, his testimony failed to establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed (see U.S. Bank N.A. v 22-33 Brookhaven, Inc., 219 A.D.3d at 665; Wells Fargo Bank, N.A. v Kowalski, 209 A.D.3d 925, 927; Pennymac Corp. v Levy, 207 A.D.3d at 737).
Accordingly, the Supreme Court should not have granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and dismissing the defendant's third affirmative defense, alleging that the plaintiff failed to strictly comply with RPAPL 1304, and for an order of reference.
CONNOLLY, J.P., IANNACCI, GENOVESI and LOVE, JJ., concur.