Upon the following papers read on this application for an order granting summary judgment, default judgment and appointment of a referee; Notice of Motion dated January 20, 2016 and supporting papers; Notice of Cross Motion and supporting papers; [*2]Answering Affirmation dated May 25, 2017 and supporting papers; Reply Affirmation and supporting papers dated June 14, 2017; it is,

ORDERED that plaintiff M & T Bank's motion for summary judgment against defendant Kevin Rice, dismissing his second and third affirmative defenses, striking his answer and for appointment of a referee to compute is denied; and it is further

ORDEREDthat plaintiff's M & T Bank's application to amend the caption to remove the "JOHN DOE #1 to JOHN DOE #10" defendants is granted and the caption shall appear as below:

Plaintiff,

Defendant(s).

plaintiff is to serve a copy of this order upon the Calendar Clerk within 30 days of this date and all further proceeding will be under the amended caption; and it is further

ORDERED that this action is scheduled for limited issue trial in accordance with this order on Friday, December 1, 2017 in Part 27, Supreme Court, Suffolk County, courtroom 17, Cromarty Court Complex, 210 Center Drive, Riverhead, NY at 9:30AM.

This is an action to foreclose a mortgage on residential real property known as 38 Lenox Street, Lindenhurst, Suffolk County, New York ("the property") given defendants-mortgagors Kevin Rice and Laura Rice ("mortgagors") to plaintiff M & T Bank 's ("plaintiff") predecessor in interest. Mortgagors executed the mortgage to secure a note given at the same time to plaintiff's predecessor in interest. Only defendant Kevin Rice ("defendant") filed an answer, co-mortgagor Laura Rice defaulted.

Plaintiff's previously moved for summary judgment seeking dismissal of defendant's answer, appointment of a referee pursuant to RPAPL § 1321, fixing the default of the non-appearing, non-answering defendants and other ancillary relief (Mot. Seq. # 001). After oral argument on August 15, 2016, the court issued a decision on the record. The decision, among other things, set and fixed the default of the non-answering, non-appearing defendants, including defendant Laura Rice, and granted plaintiff partial summary judgment dismissing defendant's first affirmative defense, but as questions of fact remained as to plaintiff's proof of mailing of the default notice required by the mortgage and of the notices required by RPAPL §1304 (defendant's [*3]second and third affirmative defenses), those issues were set for a limited issue trial pursuant to CPLR 2218. The court issued a written discovery and scheduling order, which authorized discovery limited to those issues.

On January 18, 2017 counsel certified the action for trial. Plaintiff filed its note of issue on February 28, 2017, and although it served and filed this motion one day over the 30 day limitation set by the order of August 15, 2016, as defendant did not raise an objection in his opposition. The submissions in support of plaintiff's motion include its attorney's affirmations, an affidavit of Dawn M. Bechtold, an officer of plaintiff ("Bechtold affidavit"), and attached exhibits. Defendant's opposition consists of an affirmation of counsel, to which plaintiff submits a reply affirmation of counsel.

Plaintiff unnecessarily moves again for an order dismissing all of defendant's affirmative defenses. The oral decision of August 15, 2016, besides fixing the default of co-defendant Laura Rice, also granted plaintiff partial summary judgment dismissing defendant's first affirmative defense as plaintiff has established its standing. The only issues to be addressed by this motion are plaintiff's proof of mailing of the default notice required by the mortgage and of the notices required by RPAPL §1304 (defendants's second and third affirmative defenses).

Defendant's arguments in opposition are without merit. Plaintiff's standing was established by the decision and order of August 15, 2016. By signing the January 18, 2017 Compliance Conference Order, defendant's counsel certified that all discovery was complete, so there can be no claim that outstanding discovery precludes summary judgment. The argument of plaintiff's failure to negotiate in good faith is unsupported by proof in evidentiary form, as an affirmation of counsel without personal knowledge is without value (see, Zuckerman v City of New York, 49 NY2d 557 [1980]), and in any event is not a ground for denial of the summary judgment (see IndyMac Bank, FSB v Yano-Horoski, 78 AD3d 895 [2d Dept 2010]).

Plaintiff's contention that defendant was not entitled to the RPAPL §1304 notice because he previously filed for bankruptcy is without merit. The language of RPAPL 1304 (3) in existence at the time the notices here were sent, states that the "ninety day period (emphasis added) contained in subdiivision one of this section [RPAPL 1304 (1)] shall not apply, or shall cease to apply, if the borrower has filed an application for the adjustment of debts of the borrower or an order for relief from the payment of debts ..." The notice and the 90-day period required by RPAPL § 1304 are recognized by the Legislature to be distinct concepts, as clearly indicated in a reading of the whole statute. RPAPL § 1304 (4) makes clear the legislature's differentiation between the "the notice and the ninety day period" (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d95 [2d Dept 2011]). The bankruptcy filing merely makes the ninety day period inapplicable, but does not effect the requirement that the notice must still be sent before commencing legal action.

The Bechtold affidavit is insufficient to establish proof of mailing of the both sets of notices. Although the affiant does establish her ability to testify as to the records of plaintiff [*4]pursuant to CPLR 4518(a) (see paragraphs 1 and 2) she fails in her attempt to sufficiently describe the mailing process of both the notice of default required by the mortgage and the RPAPL §1304 notices (paragraphs 11-15). The affidavit does not meet the proof of mailing requirements as set out by the Second Department cases cited by plaintiff's counsel, this submission is insufficient.

Although she states that plaintiff has "a seven step inspection and verification process to verify the accuracy and mailing of the Notices" she does not describe the "seven steps" or present any evidence as to the processes other than conclusory language that "[t]his process includes a final verification to confirm the Notices bear the proper postage, the total number of final mail pieces is verified back to original print job, and the mail pieces match the shipping tags on the United States Postal Service All Purpose Container" (paragraph 12). Her affidavit does not explain how this is done, it does not set forth the seven step process nor provide any proof in support of her conclusory statements. With respect to the RPAPL §1304 notices, she summarily states that "[f]ollowing the completion of the final mail verification the Notices were mailed..." (paragraph 13). As to the notice required by the mortgage, she again merely refers to the "seven step inspection process" without explanation and concludes "the notice of default was mailed to [defendants Rice], by way of United States Postal Service First Class Mail, on July 14, 2011. " No proof of mailing is offered other than these unsubstantiated and conclusory statements (paragraph 15).

Even if the affiant establishes her ability to testify as to the business records (CPLR 4518), she must show familiarity with office practices and procedures to establish that they were designed to insure that items were properly addressed and mailed (see CitiMortgage, Inc v Pappas, 147 AD3d 900 [2d Dept 2017]; Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017]; Wells Fargo Bank, NA v Trupia, 150 AD3d 1049 [2d Dept 2017]; Investors Savings Bank v Salas, 152 AD3d 752 [2d Dept 2017]; Wells Fargo Bank, N.A. v Lewczuk,, _AD3d_, 2017 NY Slip Op 06318 [2d Dept 2017]). Here, affiant fails to detail this standard of office practice or procedure, never even describing the seven steps (see Vivane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498 [2015]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]). Her conclusory statements, with dated copies of the notices, are insufficient to prove proper mailing (see HSBC Mtge. Corp. v Gerber, 100 AD3d 966 [2d Dept 2012]; Citimortgage, Inc. v Espinal, 134 AD3d 876 [2d Dept 2015]; Cenlar, FSB v Weisz, 136 AD3d 855 [2d Dept 2016]; U. S. Bank, N.A. v Carey, 137 AD3d 894 [2d Dept 2016]; US Bank, NA v Sabloff, _AD3d_, 2017 NY Slip Op 06313 [2d Dept 2017]).

Plaintiff once again has not established its prima facie entitlement to judgment as a matter of law since it failed to demonstrate compliance with the mailing of the RPAPL §1304 notices (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95 [2d Dept 2011]) and failed to prove mailing of the default notice, a condition precedent of the mortgage (see Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982 [2d Dept 2014]). Thus, plaintiff's motion for summary judgment is denied (see Wells Fargo Bank, NA v Burke, 125 AD3d 765 [2d Dept 2015]; Bank of New York Mellon v Aquino, 131 AD3d 1186 [2d Dept. 2015]).

Plaintiff has failed in its two summary judgment motions on these issues, so the action is scheduled for a trial limited to the issues of plaintiff's proof of the mailing of the RPAPL 1304 notices and of the notice of default required by the mortgage on Friday, December 1, 2017 at [*5]9:30 AM in this part. No further summary judgment motions are authorized.

Accordingly, plaintiff's motion is denied, other than to amend the caption, and the proposed order marked "not signed."