U.S. Bank, N.A. v. Calhoun

U.S. Bank, N.A. v Calhoun (2021 NY Slip Op 00398)

U.S. Bank, N.A. v Calhoun

2021 NY Slip Op 00398

Decided on January 26, 2021

Appellate Division, First 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 and Entered: January 26, 2021
Before: Gische, J.P., Kern, Moulton, Shulman, JJ.

Index No. 380951/12 Appeal No. 12956 Case No. 2020-00064

[*1]U.S. Bank, N.A., etc., Plaintiff-Respondent,

v

William Calhoun, Defendant-Appellant, Asset Acceptance LLC, et al., Defendants.

Aaron G. Baily, Hawthorne, for appellant.

J. Robbin Law PLLC, Armonk (Jacquelyn A. DiCicco of counsel), for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about October 4, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on its foreclosure complaint as against defendant William Calhoun, unanimously reversed, on the law, with costs, the motion denied, and, upon a search of the record, summary judgment granted to defendant dismissing the complaint as against him, without prejudice. The Clerk is directed to enter judgment accordingly.

Plaintiff failed to establish prima facie its strict compliance with RPAPL 1304 (see HSBC Bank USA v Rice, 155 AD3d 443 [1st Dept 2017]). The copy of the certified mail receipt it submitted is undated and blank in other parts, and shows the signature of someone other than defendant. The copy of the pre-paid first-class mail envelope has no recipient's name or address on it. Further, the affidavits plaintiff submitted do not demonstrate the loan servicer's employees' familiarity with the mailing practices and procedures of the servicer that had mailed the 90-day notices and the notice of default.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 26, 2021