On December 16, 2024, Justice Jamieson of the Westchester County Commercial Division issued a decision in U.S. Bank Trust N.A. v. Smith, 2024 NY Slip Op. 51857(U), holding that service by mail is complete on mailing, even if the mailing is not received, explaining:
Turning to the issue of whether plaintiff served movant with the motion for a Judgment of Foreclosure and Sale, plaintiff not only filed an affidavit of service showing that movant was served by mail at her correct address, but in opposition to this motion, plaintiff also submitted to the Court an image of a handwritten envelope, addressed to movant at her correct address. The date below the $8 metered postage shows that it has the same date as that on the affidavit of service, June 28, 2024.
In an attempt to create an issue of fact, movant asks “Could it be that the handwritten numeric street address could be mistaken for 486th Street instead of 48 6th Street. [sic] I don’t know. I only know that I did not receive it and the Exhibit A is not evidence that I received it.” Putting aside the fact that there is no 486th Street in New Rochelle, according to the U.S. Post Office website, the address does not appear to the Court to indicate anything other than movant’s proper address, 48 6th Street.
It has long been settled that a properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption. In this case, plaintiff did more than submit an affidavit of service. It also submitted a copy of an image of the actual envelope, with the date thereon matching the date on the affidavit of service.
The Court of Appeals has made it clear that [b]y statute, service is complete upon mailing. This is true regardless of whether or not the party for whom it is intended receives it. Movant’s arguments that she did not receive any notice of the motion for a Judgment of Foreclosure and Sale must thus fail.
(Internal quotations and citations omitted).