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REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff, seeking payment of a note, did not submit proof of the payment history of the note in admissible form (requirements of the business records exception to the hearsay rule not met). Therefore plaintiff’s motion for summary judgment should not have been granted:

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… [T]he plaintiff failed to demonstrate the admissibility of the records relied upon by its account officer under the business records exception to the hearsay rule (see CPLR 4518[a]), and thus, failed to establish a default in payment under the note. “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” … . Here, the plaintiff’s account officer did not allege that she was personally familiar with HSBC’s record keeping practices and procedures, and thus failed to lay a proper foundation for the admission of records concerning the payment history under the note … . Inasmuch as the plaintiff’s motion was based on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law … . Cadlerock Joint Venture, L.P. v Trombley, 2017 NY Slip Op 03927, 2nd Dept 5-17-17

CIVIL PROCEDURE (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)/DEBTOR-CREDITOR (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)

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Threat and Insults Insufficient to Establish Appellant Was Initial Aggressor
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Defendant Did Not Demonstrate the Absence of Constructive Notice of the Condition Alleged to Have Caused Plaintiff to Fall–Defendant Therefore Not Entitled to Summary Judgment
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HANDWRITTEN PROVISION OF A LETTER OF INTENT CONTROLS, THE LETTER OF INTENT IS NOT A BINDING CONTRACT, BREACH OF A FIDUCIARY DUTY AND TORTIOUS INTERFERENCE WITH CONTRACT CAUSES OF ACTION PROPERLY DISMISSED IN THE ABSENCE OF A BINDING CONTRACT, UNJUST ENRICHMENT CAUSE OF ACTION PROPERLY DISMISSED BECAUSE THE BENEFIT TO THE DEFENDANTS WAS UNIDENTIFIED (SECOND DEPT).

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