Bank of Am., N.A. v Purita | NYSC - statements made by the affiant are based documents that were in the possession of Wells Fargo prior to the alleged transfer of the note and the mortgage to the plaintiff, these records constituted hearsay

SUPREME COURT - STATE OF NEW YORK IAS PART 49 - SUFFOLK COUNTY BANK OF AMERICA, NATIONAL ASSOCIATION Plaintiff, -against- FRANCO G. PURITA, CLAUDIA PURITA, WELLS FARGO BANK, N.A., JOHN DOE (Said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises.) Defendants. EXCERPT: In meeting this burden, the plaintiff benefits from the long-standing doctrine of presumption of regularity: generally, a letter or notice that is properly stamped, addressed, and mailed is presumed to be delivered by that addressee (Trusts & Guar. Co. v Barnhardt, 270 NY 350, 352 [1936]; News Syndicate Co. v Gatti Paper Stock Corp., 256 NY 211, 214-216 [ 1931 ]; Connolly v Allstate Ins. Co., 213 AD2d 787, 787 (3d Dept 1995]; Kearney v Kearney, 42 Misc3d 360, 369 [Sup Ct, Monroe County 2013]). The presumption ofreceipt by the addressee "may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 200 I]). CPLR 2103(f)(l) defines mailing as "the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state" (see, Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790 [2d Dept 2015]). "If that proof is established, the burden shifts to the borrower," and "the final legal truism prevails: once the presumption of proper service has been established, mere denial of receipt is insufficient to rebut the presumption" (Kearney v Kearney, 42 Misc3d 360, supra at 370; see, Matter of ATM One v Landaverde, 2 NY3d 472, 478 [2004]). In meeting this burden, the plaintiff benefits from the long-standing doctrine of presumption of regularity: generally, a letter or notice that is properly stamped, addressed, and mailed is presumed to be delivered by that addressee (Trusts & Guar. Co. v Barnhardt, 270 NY 350, 352 [1936]; News Syndicate Co. v Gatti Paper Stock Corp., 256 NY 211, 214-216 [ 1931 ]; Connolly v Allstate Ins. Co., 213 AD2d 787, 787 (3d Dept 1995]; Kearney v Kearney, 42 Misc3d 360, 369 [Sup Ct, Monroe County 2013]). The presumption ofreceipt by the addressee "may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 200 I]). CPLR 2103(f)(l) defines mailing as "the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state" (see, Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790 [2d Dept 2015]). "If that proof is established, the burden shifts to the borrower," and "the final legal truism prevails: once the presumption of proper service has been established, mere denial of receipt is insufficient to rebut the presumption" (Kearney v Kearney, 42 Misc3d 360, supra at 370; see, Matter of ATM One v Landaverde, 2 NY3d 472, 478 [2004]). Unlike the defense of a failure to satisfy a contractual condition precedent which must be pleaded (see, CPLR 3015[a]; 3018), a party who has timely appeared may raise the absence or.defective notice defense on motion, even though it was not included in an answer nor made the subject of a pre-answer to dismiss (Citimortgage, Inc. v Pembelton, 39 Misc3d 454, 462 [Sup Ct, Suffolk County 2013] [finding that the failure to comply with RPAPL § 1304 gives rise to a heightened or "super" defense to the plaintiffs claim that is not subject to waiver]). Since, the notice defense remains viable during the pendency of the action it may be raised by a non-defaulting party any time prior to judgment (Citimortgage, Inc. v Pembe/ton, 39 Misc3d 454, supra at 462). The Court will first address the cross motion by the defendant mortgagors because that determination may render the plaintiffs motion-in-chief academic. The defendant mortgagors established prima facie that the plaintiff failed to satisfy a condition precedent by failing to provide them with notice of default prior to demanding payment of the loan in full (see, GMAC Mtge. LLC v Bell, 128 AD3d 772 [2d Dept 2015]; Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982 [2d Dept 2014]; cf, JPMorgan Chase Bank v Kang, 2015 NY Slip Op 30955 [U] [Sup Ct, Queens County 2015] [affidavit of merit of plaintiff's "Legal Specialist III" sufficiently detailed proof of mailing of the default notice, by indicating that she had knowledge of and has reviewed business records, which were maintained in the course of the plaintiffs regularly conducted business activities, and said records included proof of mailing documentation obtained from the United States Post Office at or near the time of mailing was made]). In support of their cross motion, the defendant mortgagors rely upon, inter alia, the affidavit of the plaintiffs representative and their own affidavits. In her affidavit, the plaintiffs representative provided a surnrnary of relevant events, including the date that the default in payments, and the amounts due as well as the sending of default notices pursuant to the mortgage. The plaintiffs representative, however, did not allege sufficient facts as to how compliance with the default notice provisions in the mortgage were accomplished; nor did she identify the individual who allegedly did so (see, Wells Fargo Bank, N.A. v Eisler, [* 7] 118 AD3d 982, supra; U.S Bank Natl Assn. v Liang, 2015 NY Slip Op 31096 [U] [Sup Ct, Queens County 2015]; see also, Nocella v Fort Dearborn Life Ins. Co. of N. Y., 99 AD3d 877 [2d Dept 2012); cf, Preferred Mut. Ins. Co. v Donnelly, 111 AD3d 1242 [41 h Dept 2013]). More specifically, the representative did not give any indication that she is familiar with the standard mailing practices or procedures of the entity alleged to have sent the notices, and that those practices or procedures were followed in this instance. The representative also made no attempt to explain the significance of the certain documentation submitted herein, which was addressed solely to Mr. Purita. Additionally, the plaintiff's affiant neither specified the exact business records upon which she relies in her affidavit; nor did she allege that she is familiar with the plaintiff's record keeping practices and procedures to insure that items are properly addressed and mailed and, thus, she did not attempt to lay a foundation for their admissibility (see, CPLR 4518[a]; US Bank N.A. v Madero, 125 AD3d 757 [2d Dept 2015]; Palisades Collection, LLC v Kedik, 67 AD3d 1329 [2d Dept 2009); see also, Cadle Co. v Gregory, 293 AD2d 33 5 [I 51 Dept 2002] [finding that the affidavit of the plaintiffs employee that was submitted in support of the motion did not identify how he was familiar with the facts and circumstances stated therein, and that his assertions of a default and of certain amounts due were made without evidentiary support and were conclusory ]). Furthermore, the affiant did not assert that she has personal knowledge of the defendant mortgagors' payment history since the time of the default (see, JP Morgan Chase Bank, N.A. v RADS Group, Inc., 88 AD3d 766 [2d Dept 2011)). In any event, to the extent that the statements made by the affiant are based documents that were in the possession of Wells Fargo prior to the alleged transfer of the note and the mortgage to the plaintiff, these records constituted hearsay (see generally, People v Goldstein, 6 NY3d 119 [2005]). The mere filing of papers received from other entities, "even if they are retained in the regular course of business, is insufficient to qualify the documents as business records, because such papers simply are not made in the regular course of the recipient, who is in no position to provide the necessary foundation testimony" (Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495 [2d Dept 2007) [internal quotation marks omitted]). Since the plaintiffs representative failed to lay a proper foundation for the admission of the records relating to the default notice allegedly served in this case, under the business records exception to the hearsay rule (see, CPLR 45 I 8[a]), those of her assertions that were based on these records are inadmissible (see, US Bank N.A. v Madero, 125 AD3d 757, supra). Moreover, the defendant mortgagors submit their personal affidavits in which they indicate that they indicate, among other things, that they did not receive the default notice as required by the terms of the mortgage. In opposition, the plaintiff relied upon the same affidavit of its representative, which is insufficient to raise a triable issue of fact as to the defendant mortgagors' cross motion, thereby warranting denial of the motion and the granting of the cross motion (see, GMAC Mtge. LLC v Bell, 128 AD3d 772, supra; Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982, supra). Counsel argument, made in the reply papers, that the plaintiff was only required to send one notice pursuant to the mortgage is to no avail, because the plaintiff failed to demonstrate compliance as to either of the defendant mortgagors. While compliance with the 90-day notice requirements of RP APL § 1304 satisfies the 30-day default notice requirements in a mortgage document (see, Wachovia Bank, N.A. v Carcano, 106 AD3d 724 [2d Dept 2013 ]), the defendant mortgagors also established prima facie that the plaintiff failed to satisfy a condition precedent by failing to provide Mr. Purita with a 90-day notice for the same reasons articulated above (see, US Bank N.A. v Madero, 125 AD3d 757, supra; see also, Hudson City Sav. Bank v DePasquale, 113 AD3d 595 [* 8] [2d Dept 2014]; cf, TD Bank, N.A. v Leroy, 121 AD3d 1256 [3d Dept 2014]; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, supra; US Bank N.A. v Caronna, 92 AD3d 865 [2d Dept 2012]). In any event, the conclusory statements set forth in the affidavit of merit that a 90-day notice has been given "to borrower(s)," even when combined with copies of certain documentation submitted herein, is insufficient to meet the requirements of the statute as to Mr. Purita, as the borrower (see, Hudson City Sav. Bank v DePasquale, 113 AD3d 595, supra; US Bank Natl Assn. v Lampley, 46 Misc3d 630 [Sup Ct, Kings County 2014]). The plaintiffs representative did not allege sufficient facts as to how compliance was accomplished. She also does not state that she served the notice; nor does she identify the individual who allegedly did so. Additionally, the plaintiff submitted neither an affidavit of service of the 90-day notice upon Mr. Purita, nor an affidavit from one with personal knowledge of the mailing, along with copies of the certified mailing receipts stamped by the United States Post Office on the date of the alleged mailing (see, Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, supra). The plaintiff's reliance upon certain findings made in a certain unreported case, Bank of N. Y. Mellon v Aquino, 2012 NY Slip Op 33143 [U] (Sup Ct, Queens County 2012), is misplaced. In Aquino, the Supreme Court, Queens County (Kerrigan, J.) determined, inter alia, that the 90-day notice requirement ceased to apply where the defendants in that case, Alberto and Elizabeth Aquino, had applied for and received a loan modification in 2008, subsequently defaulted under the loan modification agreement and, after commencement of the action, applied for another modification with the plaintiff in that action. Aquino is clearly inapposite to the facts of this case. Unlike Aquino, the plaintiff's submissions concerning this issue merely show that the defendant mortgagors applied for a loan modification after commencement. Thus, the plaintiff failed to raise a triable issue of fact in opposition to the cross motion (see, Hudson City Sav. Bank v DePasquale, 113 AD3d 595, supra). Accordingly, the complaint is dismissed insofar as asserted against to the defendant mortgagors. In light of the above, this court need not consider, as academic, the defendants mortgagors remaining arguments in support of their cross motion. Moreover, to the extent plaintiff seeks summary judgment, the appointment of a referee to compute and certain incidental relief, the same is denied as academic. Accordingly, the defendant mortgagors' cross motion for an order granting them summary judgment dismissing the complaint insofar as asserted against them is granted, and the plaintiffs motion for summary judgment and other incidental relief is denied. In view of the foregoing, the proposed order submitted by the plaintiff has been marked "not signed."