Adam Leitman Bailey, P.C. Wins Motion to Reargue on RPAPL § 1304 90 Day Notice Issue
In VW Bedstuy LLC v. Tavares, et al., a highly contested foreclosure proceeding, Adam Leitman Bailey, P.C. won a motion to reargue at the bench before the Honorable Loren Baily-Schiffman, J.S.C. of the Supreme Court, Kings County, in favor of the plaintiff lender, by successfully arguing that an affidavit of service from the individual, who physically mailed the 90-day notice, is not required to prove compliance with RPAPL § 1304.
In its motion for summary judgment and an order of reference, the lender submitted the following evidence in order to prove that a 90-day pre-foreclosure notice (“90-Day Notice”) was sent to the borrower in compliance with the requirements of RPAPL § 1304: (i) a copy of the 90-Day Notice sent to the borrower via certified mail, together with a copy of the envelope used for the certified mailing, containing the certified mail tracking number, which number was also listed on each page of the notice, (ii) a copy of the 90-Day Notice sent to the borrower via first-class mail, together with a copy of the envelope used for the first-class mailing, containing the first-class mail reference number, which number was also listed on each page of the notice, and (iii) an affidavit from the lender’s mortgage loan servicer confirming, based on a review of the servicer’s business records, that the 90-Day Notice was sent to the borrower.
In opposition, the borrower did not submit an affidavit denying receipt of the 90-Day Notice and, instead, merely orally alleged during argument that an affidavit of service of the 90-Day Notice from the person, who physically mailed the notice, was not submitted by the lender.
Initially, Judge Baily-Schiffman denied the plaintiff’s motion on the sole ground that the lender did not “submit a proper Affidavit of Service of the 90-day notice required by RPAPL § 1304”.
Upon reargument, Adam Leitman Bailey, P.C. successfully argued that there is no requirement under New York law for an affidavit of service to be submitted from the person, who physically mailed the notice, in order to prove compliance with RPAPL § 1304, and that the documentary evidence submitted by the lender sufficiently established that the 90-Day Notice was mailed to the borrower in compliance with RPAPL § 1304, as a matter of law.
Persuaded by Adam Leitman Bailey, P.C.’s arguments, Judge Baily-Schiffman granted the lender’s motion to reargue and reversed herself on the RPAPL § 1304 issue, acknowledging that an affidavit of service from the mailer is not required in order to prove compliance with RPAPL § 1304.
Exceptionally, not only was the motion to reargue granted and prior decision reversed at the bench, but Judge Baily-Schiffman deemed the affidavit initially submitted by the lender’s mortgage loan servicer to be accepted and valid proof of compliance with RPAPL § 1304, thereby removing this issue from consideration of the lender’s motion for summary judgment and an order of reference.
Adam Leitman Bailey, Jackie Halpern Weinstein, and another attorney of the Foreclosure Group at Adam Leitman Bailey, P.C. won this motion for the lender.