Opinion
4812, 380838/11.
10-26-2017
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.
Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for appellant.
Adam Seiden, Mount Vernon, for respondent.
TOM, J.P., MANZANET–DANIELS, MAZZARELLI, OING, SINGH, JJ.
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 A.D.3d 610, 612, 864 N.Y.S.2d 6 [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 A.D.2d 134, 134, 740 N.Y.S.2d 880 [1st Dept.2002] ; Bank of N.Y. Melton v. Aquino, 131 A.D.3d 1186, 1186–1187, 16 N.Y.S.3d 770 [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 A.D.3d 333, 782 N.Y.S.2d 912 [1st Dept.2004] ; Flagstar Bank, FSB v. Jambelli, 140 A.D.3d 829, 830, 32 N.Y.S.3d 625 [2d Dept.2016] ).