Bank of New York Mellon v. Robustello
Attorneys and Parties
Brief Summary
Mortgage foreclosure—strict compliance with Real Property Actions and Proceedings Law (RPAPL) 1304 [requires that at least 90 days before commencing a home-loan foreclosure, the lender send a specified pre-foreclosure notice by both registered or certified mail and by first-class mail to the borrower’s last known address].
After a nonjury trial limited to RPAPL 1304, the Supreme Court found the lender proved compliance, granted an order of reference, and later confirmed the referee’s report and entered a judgment of foreclosure and sale.
The Appellate Division reversed the order and judgment of foreclosure and sale as against the appellant, denied the order of reference and the motion to confirm the referee’s report and for a judgment of foreclosure and sale, and dismissed the complaint against the appellant.
Although the lender established admissibility of prior servicer records under CPLR 4518(a) [business records exception to the hearsay rule], the records did not actually prove mailing by first-class mail; the lender offered only a certified-mail receipt and an inadequate label lacking postage, address, and postal indicia, and no proof of standard mailing procedures or personal-knowledge testimony. This failed to show strict compliance with RPAPL 1304.
Background
The plaintiff commenced a 2013 foreclosure action against Ginger Robustello regarding property in Garnerville. A nonjury trial was held solely on whether the plaintiff strictly complied with RPAPL 1304’s pre-foreclosure notice requirements. The trial court found compliance, leading to an order of reference (2019), a referee’s computation, and a 2022 order and judgment of foreclosure and sale. Robustello appealed.
Lower Court Decision
The Supreme Court (Rockland County) found RPAPL 1304 compliance based on business records and testimony, granted an order of reference appointing a referee to compute the amount due, later confirmed the referee’s report, and directed the sale of the property.
Appellate Division Reversal
The Appellate Division held that while the plaintiff laid a proper CPLR 4518(a) foundation to admit prior servicer records, those records did not prove first-class mailing required by RPAPL 1304. The plaintiff showed certified-mail delivery but failed to produce sufficient evidence of first-class mailing or evidence of standard office mailing practices or personal-knowledge testimony. The court reversed the order and judgment of foreclosure and sale as to Robustello, denied the order of reference and related relief, confirmed nothing, and dismissed the complaint against her.
Legal Significance
In foreclosure actions, strict compliance with RPAPL 1304 is a condition precedent; lenders must prove both certified/registered and first-class mailings. Admissibility of records under CPLR 4518(a) is not enough—the records must substantively establish the mailings. Labels lacking postage, addresses, and postal indicia are inadequate; absent proof of standard mailing procedures or personal-knowledge testimony, foreclosure claims will be dismissed.
To satisfy RPAPL 1304, lenders must produce concrete proof of both certified/registered and first-class mailings (or reliable standard-office-procedure evidence or personal-knowledge affidavits). Failure to do so results in denial of foreclosure relief and dismissal, even if business records are admissible.