MEMORANDUM Plaintiff commenced this action to foreclose on a Mortgage encumbering real property known as 9112 110th Street A/K/A 91-12 110th Street, Richmond Hill, New York 11418 (the “Subject Property”). Plaintiff now seeks an order granting summary judgment in its favor pursuant to CPLR 3212 against defendant Carlos Morales (“defendant,” “borrower”) and dismissing the affirmative defenses, set-offs, and counterclaims in defendant’s Answer with Counterclaims (the “Answer”); a default judgment against the remaining non-answering defendants; appointing a referee pursuant to RPAPL 1321 to compute the amounts due and owing under the subject Note and Mortgage; and to amend the caption in this action. Plaintiff has submitted, among others, the following: the pleadings; affidavit from Lucretia Birkinshaw, Document Control Officer at Select Portfolio Servicing, Inc. (“SPS”); Power of Attorney; the Note; the Mortgage; Assignment of the Mortgage; modification; Notice of Default, dated October 18, 2017; 90 Day Notice; Letter Log History; and NYS proof of filing statement.In her affidavit, Ms. Birkinshaw states that as a mortgage servicer, SPS collects payments from borrowers and maintains up-to-date electronic records concerning the loans it services in its electronic record-keeping system. Ms. Birkinshaw states that she has access to SPS’s business records, including the business records for and relating to the subject loan (the “Loan Records”). Ms. Birkinshaw states that this affidavit is based upon her review of those records relating to the borrower’s loan and from my own personal knowledge of how the records are kept and maintained. The Loan Records are maintained by SPS in the course of its regularly conducted business activities and are made at or near the time of the event, by or from information transmitted by a person with personal knowledge. Ms. Birkinshaw also states that it is the regular practice to keep such records in the ordinary course of a regularly conducted business activity. Ms. Birkinshaw further states that to the extent that the business records of the loan in this matter were created by a prior servicer, the prior servicer’s records for the loan were integrated and boarded into SPS’s systems, such that the prior servicer’s records concerning the loan are now part of SPS’s business records. SPS maintains quality control and verification procedures as part of the boarding process to ensure the accuracy of the boarded records. It is the regular practice of SPS to integrate prior servicers’ records into SPS’s business records, and to rely upon the accuracy of those boarded records in providing its loan servicing functions. Ms. Birkinshaw states that these prior servicer records are integrated and relied upon by SPS as part of SPS’s business records. In addition, Ms. Birkinshaw states that she acquired personal knowledge of the matters stated in the affidavit by personally examining the business records pertaining to the subject loan.In opposition, defendant argues that summary judgment is premature because discovery is still outstanding. Defendant claims plaintiff has failed to respond to the document demands served upon plaintiff’s counsel on June 1, 2018. Defendant also argues that plaintiff has failed to comply with the notice requirement set forth in Section 22 of the Mortgage. Specifically, Section 22 in connection with Section 15 of the Mortgage requires that in the event the borrower defaults, the lender is required to send a Notice of Default via first class mail to the borrower at least 30 days before it can demand payment in full or bring a lawsuit of foreclosure. Defendant claims that plaintiff did not submit any additional proof of mailing, such as a document from the United States Postal Service or an electronic record. Rather, the only other evidence of mailing plaintiff has submitted is an affidavit from Ms. Birkinshaw. In her affidavit, Ms. Birkinshaw states that:The Loan Records reflect that Borrower was notified of this default by letters dated October 18, 2017 (the “Notice of Default”). The Notice of Default was mailed via first class mail and addressed to Borrower at the Subject Property…”Defendant claims that Ms. Birkinshaw failed to state in her affidavit when the Notice of Default was actually mailed. Defendant further claims that Ms. Birkinshaw failed to state that she is personally familiar with the standard office mailing practices and procedures that are designed to ensure that letters are properly addressed and sent, and that these procedures were uniformly and diligently followed in this case. Therefore, defendant argues that the assertions in Ms. Birkinshaw’s affidavit are bald and conclusory, and do not establish that the mailing was performed according to the requirements of the Mortgage. As such, defendant argues that plaintiff failed to submit evidence demonstrating that the Notice of Default was properly and timely mailed pursuant to the terms of the Mortgage.In reply, plaintiff argues that it established service of the Notice of Default based upon Ms. Birkinshaw’s review of the business records and the production of those records. In her affidavit, Ms. Birkinshaw states that the Notice of Default was mailed to the defendant on October 18, 2017 by first class mail, addressed to the 9112 110 St Richmond Hill, NY 11418. Ms. Birkinshaw’s affidavit also includes a copy of the letter log and contact history report. Plaintiff claims that the letter log and contact history report are business records of SPS, and establish that the Notice of Default was mailed by “Regular Demand Non Certified” mail. Plaintiff asserts that this record also satisfies the CPLR 4518 business records requirements as: (1) it was maintained by SPS in the course of its regularly conducted business activities; (2) it was regular practice to keep such records in the ordinary course of a regularly conducted business activities; and (3) this record was made at or near the time of the event. Therefore, plaintiff argues that the SPS records are admissible and provide sufficient evidence of compliance with Notice of Default requirements found in the Mortgage.Plaintiff also asserts that defendant has not submitted an affidavit denying receipt of the Notice of Default. In addition, plaintiff asserts that defendant’s claim that the motion is premature is without merit, because defendant failed to identify how discovery would aid in his defense of this action.“There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518 (a), and the records themselves actually evince the facts for which they are relied upon” (Citigroup v. Kopelowitz, 147 AD3d 1014 [2d Dept. 2017). The business records rule provides that:Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. (CPLR 4518[a]; Bank of N.Y. Mellon v. Gordon, 171 AD3d 197 [2d Dept. 2019])“[M]ailing may be proved by any number of documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518″ (HSBC Bank USA, Nat’1 Ass’n v. Ozcan, 154 AD3d 822, 826 [2d Dept. 2017). A foreclosing plaintiff's submission of admissible business records evidencing mailing of notices, including those from its loan servicer, is sufficient to establish entitlement to summary judgment (see a BAC Home Loans Servicing, L.P. v. Chertov, 165 AD3d 1214 [2d Dept. 2018]; Citibank, N.A. v. Gentile, 156 AD3d 859, 860 [2d Dept. 2017]).It is well settled that “[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” (Citibank, N.A. v. Cabrera, 130 AD3d 861 [emphasis added] [2d Dept. 2015]). As a general rule, “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” (Standard Textile Co. v. National Equip. Rental, 80 AD2d 911 [2d Dept. 1981]). “However, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business” (Bank of N.Y. Mellon v. Gordon, supra). As such, “[t]he reports of an independent contractor regularly relied on by the business may qualify as the business’ record” (Jerome Prince, Richardson on Evidence §8-307 [Farrell 11th ed 1995]; cf. General Ins. Co. of Am. v. United States Fire Ins. Co., 886 F3d 346, 358 [4th Cir 2018]; Cocroft v. HSBC Bank USA, N.A., 796 F3d 680 [7th Cir 2015]).Here, the Court finds that Ms. Birkinshaw’s affidavit and supporting documents demonstrate that the Notice of Default was mailed to the defendant in accordance with the terms set forth in the Mortgage. In her affidavit, Ms. Birkinshaw stated that the prior servicer records were incorporated into SPS’ business records and relied upon by SPS in its own business. Moreover, contrary to defendant’s claims, Ms. Birkinshaw stated that she has personal knowledge of SPS’ business practices and procedures, and has access to SPS’s business records, including the business records for and relating to the subject loan. Ms. Birkinshaw also stated that her affidavit is based upon her review of those records relating to the borrower’s loan and from her own personal knowledge of how the records are kept and maintained. Moreover, the Court finds that Ms. Birkinshaw’s affidavit was sufficient to lay a proper foundation for the admission of the letter log history. Based on the above, the Court finds that plaintiff demonstrated that the Notice of Default was mailed to the defendant in accordance with the terms set forth in the Mortgage. Therefore, the Court finds that the plaintiff has established its entitlement to summary judgment. The Court further finds that defendant’s claim that the motion is premature is without merit. Accordingly, the branch of the motion seeking summary judgment is granted.The remaining branches of the motion are granted as unopposed.Submit order.
