Matter of O'Farrel v. Caliber Home Loans

Matter of O'Farrel v Caliber Home Loans (2020 NY Slip Op 07140)

Matter of O'Farrel v Caliber Home Loans

2020 NY Slip Op 07140

Decided on December 01, 2020

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: December 01, 2020
Before: Gische, J.P., Webber, Oing, Mendez, JJ.

Index No. 850196/16 Appeal No. 12494 Case No. 2020-02782

[*1]In the Matter of Karl O'Farrel, Petitioner-Respondent,

v

Caliber Home Loans et al., Respondents-Appellants, John Doe #1 et al., Respondents.

Fein, Such & Crane LLP, Westbury (Michael S. Hanusek of counsel), for appellants.

Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for respondents.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 19, 2019, which denied respondents' motion for summary judgment dismissing the petition, unanimously affirmed.

Respondents failed to establish prima facie that they sent to petitioner, 90 days prior to the sale of his cooperative shares held as collateral, the additional pre-disposition notice required by UCC 9-611(f) that he was in danger of losing his home. Their supporting affidavit failed to demonstrate the affiant's familiarity with their mailing practices and procedures and do not [*2]provide a foundation for a business records exception to hearsay evidence (CPLR § 4518; see e.g. Wells Fargo Bank, N.A. v Merino, 173 AD3d 491 [1st Dept 2019] [insufficiency of affidavit submitted to show compliance with RPAPL 1304]). Additionally, the affidavit of service for the Notice of Default, required by the loan, failed to include a unit number in this large multi-family building (Wells Fargo Bank, N.A. v. Biedermann, 178 AD3d 508 [1st Dept 2019]).

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

ENTERED: December 1, 2020