Gross v. Bank of Am., N.A.

2024 NY Slip Op 31105(U)

• Court: New York Supreme Court, Kings County
• Decided: April 2, 2024
• Status: Unpublished

Opinion

Gross v Bank of Am., N.A. 2024 NY Slip Op 31105(U) April 2, 2024 Supreme Court, Kings County Docket Number: Index No. 506981/2024 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 04/02/2024 01:23 PM INDEX NO. 506981/2024 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 04/02/2024

SUPREME COURT 0-F THE STATE OF NEW. Y.ORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 -·-------· ----------. -------~- .. _, __ :---------:K MENDEL GROSS, Peti tion·er, Decision and order

- aga-inst .....

BANK OF AMERICA, J::! .A., Resp.ondent, .Apri.l 2, 2024 --------. -~--- -- -- . - --- ------------- x _PRESENT: HON. LEON RUCHELSMAN .Motion Seq. #1

The p.eti ti oner has moved- seeking to stay :a fo;r-e_closure s.a_J,e, The respondent oppose,s the motion. Papers were submi tte.c:1 by the

part_ie:$ and arguments _held. -After reviewing all the arg..ument-s

this court riow makes the foilowing determination . .According to the. petit.ion, oti. May a, 2007,. the petitiohEfr

Mend.el Gros·_s· lJo:t-rowed $.320, 00.0 from the Yesp·ondent Bank _of

America arid was required to make certain monthly pi:iyrnents for

thirty years.-. Th.~ petitioner executed. a note to Ba-nk o.f Amer.ica which was se.cured. by a securi.ty interest in the• capital s:t:.oc:.:k

owned by petitioner rei:;rarding the premises located at 4"44 Bedford

Avenue:, Apa:.rtment 18-C in Kin_gs County. The note was also

secured by .a UCC-.1 financing statemenL The petitioner failed to

:make the payment due July 1, 2011. On June 23, 20l7 th_e

respon

pet.itiort.e·r commenced an a;ction. -s-eekih_g to- stay the foreclosure

sp.le. A.year later the parties entered into a stipulation

whe.rein the petitioner a-greed t.o certain ·p-a:yoff terms by November

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12, 2018. The petitioner failed to pay by that date and on December 20, 2023 the respondent notified petitioner pursuant to

UCC 9-§611 that he was in default and was subject to a

foreclosure sale. Indeed, on January 18, 2024 the respondent

served petitioner that they intended to conduct an auction and

sale for the liquidation of the respondent's security interest in

the petitiQnf;r' s st.ock and proprietary lease on March 14, 2024. The petitioner has now moved seeking an injunction to stop that

sale o:h the grounds the respondent failed to comply with the

notice requirements of UCC §9-611 and that in any event the

claims are time barred.

Conclusions of Law

It is well settled that the notice and other requirements of

a UCC 9-§611 non-judicial foreclosure sale, like a sale pursliant

to RPAPL §1304 is a condition precedent to the commencement of. a

foreclosure action and the plaintiff bears the burden of

demonstrating full compliance w.ith those provisions (Stern-

Obstfeld v. Bank of America, 30 Misc3d 901, 915 NYS2d 456

[Supreme Cou~t Ne~ York County 2011]).

The petitioner asserts, concerning the ninety day notice,

that he. ''neyer. received such a notice from the. Respondent or

anyone else" (see, Affirmation of Mende.1 Gross, ':1[5 [NYSGEF Doc.

No. SJ ) . However, notice was s.erved to. the addres.s at 4 44

.2

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Bedford Avenue Apartment 18'--C, the address of the petitioner.

Thus, to satisfy the notice requirements of this statute, along

with RPAPL §1304, the respondent must provide proof of the

mailing "which can be 'established with proof .of the actual

mailings, such as affidavits of mailing or domestic return

receipts with attendant signatures" (see, Citibank N.A., v.

Conti-Scheurer, 17 2 A.D3d 1 7, 98 NYS3d 2 7 3 [ 2d Dept. , 2019] ) .

Thns, documents which contain the "' return rece.ipt requested,'

and the corresponding notice bearing a 20'-digit number identicc3.J

to the 20-digit bar code on the .envelope, constituted admissible

evidence sufficient to establish, prim.a faCie, the actual mailing

of the required notice by certified mail" (see, Wilmington

Savings Fund Society, FSB v. Hershkowitz, 189 AD3d 1126, 138

NYS3d 54 [2d·Dept., 2020]). lri. this case the respondent has

presented evidence in the form of the return receipt

.documentation which adequately d.emonstrates proper service. The

petitioner has not presented any evidence, other than a bctld denial, raising questions .of fact :whether service was properly

performed. Furthermore, even if a statute of. limitations applies to the

service of any such notice; the statute only began once the date

for payment passed initiating any defaultr namely November 12,

201B. Further, any statutes of limitations was tolled for 228:

days due to the COVID-19 pandemic {see, Ruiz v. Sanchez, 219 AD3d

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1363, 195 NYS3d 796 [2d Dept., 20231). Therefore, the notice

sertred was Surely timely,

Consequently, since the notice was timely served and there

is sufficient evidence of such service, the petitioner has no

likelihood of success enjoining the sale. Therefore, the motion

seeking to enjoin any foreclosure sale is denied.

So ordered.

ENTER:

DATED: April 2, 2024 Brooklyn N.Y. Hon. Leon JSC t.man

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