| Matter of O'Farrel v Caliber Home Loans |
| 2020 NY Slip Op 07140 [189 AD3d 413] |
| December 1, 2020 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Karl O'Farrel, Respondent, v Caliber Home Loans et al., Appellants, et al., Respondents. |
Fein, Such & Crane LLP, Westbury (Michael S. Hanusek of counsel), for appellants.
Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for respondents.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 19, 2019, which denied respondents' motion for summary judgment dismissing the petition, unanimously affirmed.
Respondents failed to establish prima facie that they sent to petitioner, 90 days prior to the sale of his cooperative shares held as collateral, the additional pre-disposition notice required by UCC 9-611 (f) that he was in danger of losing his home. Their supporting affidavit failed to demonstrate the affiant's familiarity with their mailing practices and procedures and do not provide a foundation for a business records exception to hearsay evidence (CPLR 4518; see e.g. Wells Fargo Bank, N.A. v Merino, 173 AD3d 491 [1st Dept 2019] [insufficiency of affidavit submitted to show compliance with RPAPL 1304]). Additionally, the affidavit of service for the Notice of Default, required by the loan, failed to include a unit number in this large multifamily building (Wells Fargo Bank, N.A. v Biedermann, 178 AD3d 505 [1st Dept 2019]). Concur—Gische, J.P., Webber, Oing, Mendez, JJ.