JP Morgan Chase Bank, N.A. v. Salmon

2017 NY Slip Op 7530, 154 A.D.3d 603, 62 N.Y.S.3d 361

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 2017
• Docket: 4812 380838/11
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered November 18, 2016, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for leave to renew its motion for summary judgment, unanimously affirmed, with costs.

Even if the reason that the affidavit submitted by plaintiff’s servicing agent was not offered on the original motion was sufficient (see Mattis v Keen, Zhao, 54 AD3d 610, 612 [1st Dept 2008]), plaintiff did not establish its prima facie entitlement to judgment as a matter of law since it failed to demonstrate proof of mailing and, therefore, strict compliance with RPAPL 1304 (see Aames Capital Corp. v Ford, 294 AD2d 134, 134 [1st Dept 2002]; Bank of N.Y. Mellon v Aquino, 131 AD3d 1186, 1186-1187 [2d Dept 2015]).

The motion court also determined that defendant’s production of payment receipts raised issues of fact in this foreclosure action. Defendant’s failure to plead these affirmative defenses in his answer does not preclude raising these issues in response to the summary judgment motion (see Rivera v New York City Tr. Auth., 11 AD3d 333 [1st Dept 2004]; Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830 [2d Dept 2016]).

Concur — Tom, J.R, Manzanet-Daniels, Mazzarelli, Oing and Singh, JJ.