On mailing, again

Bank of N.Y. Mellon v Parker, 186 AD3d 447 [2d Dept. 2020]

The plaintiff failed to establish, prima facie, that it mailed the RPAPL 1304 notice, because “the plaintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by an individual with personal knowledge of that procedure” (U.S. Bank Trust, N.A. v Sadique, 178 AD3d 984, 986 [2019], citing Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 21 [2019]).

We disagree, however, with the Supreme Court’s determination to grant Parker’s cross motion for summary judgment dismissing the complaint insofar as asserted against her. Parker offered only a mere denial of receipt of the RPAPL 1304 notice in support of her cross motion, and such a mere denial is insufficient to establish entitlement to such relief (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 20-21; see also U.S. Bank Trust, N.A. v Sadique, 178 AD3d at 987). Accordingly, the court should have denied Parker’s cross motion.

This one also goes into the hearsay issue commonly found in these cases.

USBank N.A. v Haliotis, 185 AD3d 756 [2d Dept. 2020]

Additionally, the affidavit submitted by the plaintiff for the purpose of demonstrating that it properly served its 90-day notice did not specify that the notice was served in an envelope that was separate from any other mailing or notice (see RPAPL 1304 [2]). While the plaintiff attempted to remedy this deficiency in its reply papers, even assuming that its reply affidavit may properly be considered (see Central Mtge. Co. v Jahnsen, 150 AD3d 661, 664-665 [2017]; cf. U.S. Bank N.A. v Laino, 172 AD3d 947, 948 [2019]), that affidavit contained only a conclusory assertion that the mailing was done in a separate envelope, with no assertion by the affiant that she had any personal knowledge of the actual mailing or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 21).

The plaintiff also failed to establish, prima facie, the defendants’ default in payment. While the affidavit submitted by the plaintiff made the requisite showing that the affiant was familiar with the plaintiff’s recordkeeping practices and procedures with respect to the defendants’ payment history, the affiant failed to submit any business record substantiating the alleged default. Conclusory affidavits lacking a factual basis are without evidentiary value (see e.g. JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d 718, 719-720 [2019]). Further, “[w]hile a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay” (U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772, 774 [2019] [citation omitted]; see Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2019]). “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” (Bank of N.Y. Mellon v Gordon, 171 AD3d at 205).

This one involves a deficient proof of mailing statement

JPMorgan Chase Bank, N.A. v Nellis, 183 AD3d 583 [2d Dept. 2020]

Although the plaintiff submitted tracking information from the United States Postal Service for certified mailings of the notice, the redacted proof of first-class mailing did not contain any information linking a first-class mailing to the RPAPL 1304 notice, and thus, failed to establish that the notice was mailed by first-class mail (see U.S. Bank N.A. v Ahmed, 174 AD3d at 663; Citimortgage, Inc. v Succes, 170 AD3d at 948). Likewise, the plaintiff’s submission of a “Proof of Filing” statement pursuant to RPAPL 1306 contained no information indicating that the mailing was done by both registered or certified mail and first-class mail as required by RPAPL 1304 (see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890, 892 [2017]).

Some others I don’t feel like parsing the decisions: Wells Fargo Bank, N.A. v Moran, 168 AD3d 1128 [2d Dept. 2019]; PennyMac Corp. v Arora, 184 AD3d 652 [2d Dept. 2020]

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