JP Morgan Chase Bank, N.A. v Salmon

JP Morgan Chase Bank, N.A. v Salmon 2017 NY Slip Op 07530 Decided on October 26, 2017 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 on October 26, 2017
Tom, J.P., Manzanet-Daniels, Mazzarelli, Oing, Singh, JJ.
4812 380838/11

[*1]JP Morgan Chase Bank, N.A., Plaintiff-Appellant,

v

Winston Salmon, Defendant-Respondent, Rohan Salmon, et al., Defendants.

Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for appellant.

Adam Seiden, Mount Vernon, for respondent.

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. Melton 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]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 26, 2017

CLERK