| Wells Fargo Bank, N.A. v Hirsch |
| 2020 NY Slip Op 04996 |
| Decided on September 16, 2020 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 16, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
2019-06012
(Index No. 58082/17)
v
Matthew Hirsch, appellant, et al., defendants.
Joseph E. Ruyack III, Chester, NY, for appellant.
Gross Polowy LLC (Reed Smith LLP, New York, NY [Brenda Beauchamp Ward and Andrew B. Messite], of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Matthew Hirsch appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Westchester County (Charles D. Wood, J.), dated December 4, 2018. The order and judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court dated September 21, 2018, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Matthew Hirsch and for an order of reference, and an order of the same court also dated September 21, 2018, inter alia, referring the matter to a referee to compute the amount due to the plaintiff, granted those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale, and directed the sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Matthew Hirsch and for an order of reference are denied, those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied, and the orders dated September 21, 2018, are modified accordingly.
The plaintiff in this mortgage foreclosure action, on its motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Matthew Hirsch (hereinafter the defendant) and for an order of reference, failed to demonstrate, prima facie, its compliance with RPAPL 1304 because it failed to lay a proper foundation for the business records submitted as proof that the RPAPL 1304 notice was sent by first-class mail (see RPAPL 1304[2]; CPLR 4518[a]). In particular, the representative of the plaintiff who attempted to lay such a foundation failed to attest either that the records, which were created by a different entity, were incorporated into the plaintiff's records and routinely relied upon by the plaintiff in its business, or that she had personal knowledge of that entity's business practices and procedures (see PennyMac Corp. v Khan, 178 AD3d 1064; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 210).
Accordingly, those branches of the plaintiff's motion which were for summary [*2]judgment on the complaint insofar as asserted against the defendant and for an order of reference should have been denied.
BALKIN, J.P., LEVENTHAL, MILLER and CONNOLLY, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court