Holding: attorney affirmation denying Plaintiff’s compliance with RPAPL 1304 (90 day notice) insufficient to defeat summary judgment and must be supported by an affidavit from the Defendant.
Rockland County Supreme Court – SRP 2010-6, LLC v. Rhonda Thorne, et al. Index # 032674/2015
Friedman Vartolo successfully argued that Defendant’s attorney affirmation was insufficient to create a triable issue of fact with respect to compliance with RPAPL 1304 because it was unsupported by an affidavit from the borrower. The court held that:
(T)he Defendant’s cross motion/opposition is only accompanied by an Affirmation of counsel, who has no personal knowledge of the facts of the receipt of the 90 Day Notice or the Notice of Default. The absence of an affidavit of a person with personal knowledge of the facts is insufficient to demonstrate the existence of a triable issue of fact. [Zuckerman v. City of New York, 49 NY2d 557, 563 (1980); Israelson v. Rubin, 20 AD2d 668 (2d Dept 1964)]. Further, the mere denial of receipt of the 90 Day Notice required pursuant to Real Property Actions and Proceedings Law 1304 is insufficient to rebut the presumption of delivery. [Countrywide Home Loans, Inc. v. Brown, 305 AD2d 626 (2d Dept2003); Grogg v. South Road Associates, L.P., 74 AD3d 1021 (2d Dept 2010); Emigrant Mortg. Co., Inc. v. Persad, 117 AD3d 676 (2d Dept 2014)]. The Defendant’s cross motion fails to include an Affidavit or Affirmation from the Defendant at all let alone one that provides a factual basis for denying receipt of the notices. As such, the Defendant’s motion to dismiss for failure to comply with the conditions precedent of a foreclosure is denied.
Friedman Vartolo also successfully argued that the prior servicer’s records were admissible as an exception to the hearsay rule because they were integrated into Plaintiff’s servicing records and were routinely relied upon.
This decision is significant as it assigns a burden on the defendant to rebut that the 90-day notice letter was delivered. The decision indicates that denial of compliance with 90-day notice requirements by attorney affirmation only is insufficient. Therefore, this should serve as a tactic for foreclosure counsel to defeat an opposition to summary judgment that is not accompanied by an affidavit from the defendant.
Written By Zachary Gold
To view full decision click here.