RPAPL 1304(1) provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." Strict compliance with the statutory notice provision is a condition precedent to the commencement of a foreclosure action. Proof of mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that the items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. Here, the plaintiff established that the requisite notice was sent to the defendant in the prescribed manner by submitting the affidavit of an employee of the plaintiff's loan servicer, who had knowledge of the loan servicer's standard office procedures for mailing RPAPL 1304 notices and described those notices, and, by reference to business records annexed to the affidavit, which confirmed that those procedures were adhered to in this case. In opposition, the defendant's bare denial of receipt of the notice was insufficient to raise a triable issue of fact.
Bank of Am., N.A. v. Gonzalez, NY Slip Op 04098 (2d Dep't August 2, 2023)
