Key Takeaway
Court ruling highlights stricter requirements for proving mailing under CPLR 4518(a), requiring detailed affidavits about office procedures beyond just documentary evidence.
Proving that a document was properly mailed may seem straightforward, but New York courts require strict adherence to evidentiary standards under CPLR 4518(a). This case from the Second Department illustrates how even having documentary evidence of mailing can fall short if the foundational requirements aren’t met. Unlike no-fault insurance cases where mailing disputes are common, foreclosure proceedings present their own unique challenges when establishing proper notice to defendants.
The business records exception to the hearsay rule allows parties to introduce certain documents as evidence without calling the person who created them as a witness. However, as this decision demonstrates, courts scrutinize whether the proper foundation has been laid, particularly regarding an affiant’s knowledge of office procedures and practices.
Jason Tenenbaum’s Analysis:
Bank of Am., N.A. v Wheatley, 2018 NY Slip Op 01175 (2d Dept. 2018)
“The plaintiff failed to make the requisite showing. In support of its motion, the plaintiff submitted the affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the loan servicer, along with two copies of a 90-day notice addressed to the defendant and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. While mailing may be proved by documents meeting the requirements of the “business records exception” to the hearsay rule, Benight, in her affidavit, did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed”
I have to imagine this would be a mailing ledger or some other documentary proof showing that an item was mailed? A little different than in the no-fault scenario
Key Takeaway
The court’s decision emphasizes that documentary evidence alone isn’t sufficient—the affiant must demonstrate personal knowledge of the company’s mailing procedures. This stricter standard differs from typical business records cases where general familiarity with record-keeping might suffice. Proper foundation requires detailed testimony about systematic mailing practices.
