Citimortgage, Inc. v. Leitman

Summary

The Appellate Division, Second Department reversed an order and judgment of foreclosure and sale and dismissed the complaint insofar as asserted against Joseph Leitman and 310 Walsh Court, LLC. The court held that although the plaintiff properly established the admissibility of records concerning the RPAPL 1304 notice, it failed to prove strict compliance with the statute because it did not provide proof of actual certified mailing or testimony establishing a standard mailing procedure. The court therefore denied the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale.

Holdings

1. The trial court properly admitted the copies of the ninety-day notice, the IPD report, and the mailing manifest because Lopez established that the information supplied by Venture was incorporated into Citimortgage's records and routinely relied upon in its business.
2. Citimortgage failed to establish strict compliance with RPAPL 1304 because it provided neither proof of actual mailing of the ninety-day notice nor testimony from a person with personal knowledge of a standard mailing procedure designed to ensure that the notice was properly addressed and mailed.

Questions Presented

1. Whether the copies of the RPAPL 1304 notice, IPD report, and mailing manifest were properly admitted into evidence under the business-records rule.
2. Whether Citimortgage established strict compliance with RPAPL 1304's requirement that the ninety-day notice be sent by certified or registered mail and first-class mail before commencement of the foreclosure action.

Disposition

reversed