You are here: / / PROOF OF STANDING DID NOT MEET CRITERIA OF THE BUSINESS RECORDS EXCEPTION...
,

PROOF OF STANDING DID NOT MEET CRITERIA OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Fourth Department, reversing Supreme Court, determined the bank’s proof in this foreclosure action did not meet the criteria of the business records exception to the hearsay rule:

We agree with defendants that the affidavit submitted by plaintiff in support of its motion was insufficient to establish standing. The Caliber employee who authored the affidavit stated that Caliber maintains plaintiff’s books and records pertaining to the mortgage account; plaintiff had physical possession of the original note before the action was commenced and remained in physical possession of the original note as of the date of the motion; and he was personally familiar with Caliber’s record-keeping practices. However, plaintiff failed to demonstrate that its records pertaining to defendants’ account were admissible as business records (see CPLR 4518 [a]), inasmuch as the affiant did not swear that he was personally familiar with plaintiff’s record-keeping practices and procedures… .

Contrary to plaintiff’s contention, the mere attachment of a copy of the note to the verified complaint does not demonstrate that plaintiff had physical possession of the original note when the action was commenced … , and thus is insufficient to establish standing. The Bank of N.Y. Mellon v Anderson, 2017 NY Slip Op 05349, 4th Dept 6-30-17

 

You might also like
THE MAJORITY CONCLUDED PLAINTIFF IN THIS ASBESTOS-EXPOSURE CASE PROVED GENERAL AND SPECIFIC CAUSATION THROUGH EXPERT TESTIMONY; THE DISSENT ARGUED NEITHER CAUSATION ELEMENT WAS SUPPORTED BY SUFFICIENT EVIDENCE (FOURTH DEPT).
MOTHER’S PETITION FOR AN UPWARD MODIFICATION OF FATHER’S CHILD SUPPORT BASED UPON A CHANGE IN FATHER’S EMPLOYMENT STATUS WAS PROPERLY GRANTED, BUT THE MODIFICATION SHOULD HAVE BEEN MADE RETROACTIVE TO THE DATE OF EMPLOYMENT, NOT THE DATE OF THE PETITION (FOURTH DEPT).
Law Office Failure Can Be a Valid Excuse Re: Vacating a Default Judgment
THE JUDGE SHOULD NOT HAVE LEFT IT TO THE AGENCY TO DETERMINE FATHER’S VISITATION AND SHOULD NOT HAVE MADE THERAPEUTIC COUNSELING A PREREQUISITE FOR VISITATION (FOURTH DEPT). ​
ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED.
COUNTY-SHERIFF DISCIPLINARY RECORDS CREATED BEFORE THE 2020 REPEAL OF THE STATUTE WHICH EXEMPTED THEM FROM DISCLOSURE PURSUANT A FOIL REQUEST ARE NOW SUBJECT TO DISCLOSURE (FOURTH DEPT).
ALTHOUGH THE POLICE IN THIS STREET STOP CASE MAY HAVE HAD CAUSE FOR A LEVEL ONE INQUIRY (A CAN IN A PAPER BAG), THEY IMMEDIATELY ENGAGED IN LEVEL TWO INVASIVE QUESTIONING FOCUSED ON DEFENDANT’S POSSIBLE VIOLATION OF THE OPEN CONTAINER LAW; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
Uninhabited Trailer Met Definition of a “Building” Within the Meaning of the Arson Statute

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HEARING NECESSARY ON MOTHER’S PETITION TO CHANGE THE SURNAME OF ONE OF... ALTHOUGH NO SPECIAL RELATIONSHIP EXISTED BETWEEN BROKER AND PLAINTIFF, CAUSE...