New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Evidence2 / BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE...
Evidence, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department determined the bank did not meet the requirements for the business records exception to the hearsay rule, the bank’s motion for summary judgment should not have been granted:

In support of its motion, the plaintiff relied upon the affidavit of Meldin Rhodes, assistant secretary of Nationstar Mortgage, LLC, the current loan servicer. Rhodes averred that “servicing records” showed that the notice of default was mailed to the defendant on November 2, 2011, and the RPAPL 1304 notice was mailed on December 28, 2012. Attached to Rhodes’s affidavit were copies of the notice of default and the RPAPL 1304 notice purportedly sent by Bank of America, N.A. (hereinafter BOA), the prior loan servicer, to the defendant.

The plaintiff failed to demonstrate the admissibility of the records relied upon by Rhodes under the business records exception to the hearsay rule (see CPLR 4518). Rhodes, an employee of the current loan servicer, did not aver that he was personally familiar with the record keeping practices and procedures of BOA, the prior loan servicer. Thus, Rhodes failed to lay a proper foundation for admission of records concerning service of the required notices, and his assertions based on these records were inadmissible … .

Inasmuch as the plaintiff failed to tender sufficient evidence to demonstrate the absence of triable issues of fact as to its strict compliance with RPAPL 1304 and the notice requirement in the mortgage, its motion should have been denied, without regard to the sufficiency of the opposition papers  … . Deutsche Bank Natl. Trust Co. v Carlin. 2017 NY Slip Op 05421, 2nd Dept 7-5-17

 

FORECLOSURE (EVIDENCE, BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, EVIDENCE, BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/EVIDENCE (FORECLOSURE, BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/HEARSAY (FORECLOSURE,  BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE,  BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

July 5, 2017
Tags: Second Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 CurlyHost https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png CurlyHost2017-07-05 13:14:192021-02-12 22:16:22BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.
You might also like
THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE IN LOCATING THE DEFENDANT BEFORE RESORTING TO “NAIL AND MAIL” SERVICE OF PROCESS; COMPLAINT DISMISSED (SECOND DEPT).
Evidence of Prior Crimes Improperly Admitted to Prove Identity and Intent—There Was No Unique Modus Operandi Which Would Prove Identity and Intent Could Be Inferred from the Commission of the Acts Charged
PLAINTIFF’S DECEDENT WAS FOUND AT THE BOTTOM OF STAIRS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE CAUSE OF THE FALL WAS UNKNOWN; IN ADDITION, THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT).
Declaratory Judgment Actions Seeking a Determination of the Validity of Certain Tax Assessment/Liens Were Governed by the Six-Year Statute of Limitations
ALTHOUGH THERE WAS A STORM IN PROGRESS, DEFENDANT’S SNOW REMOVAL MAY HAVE EXACERBATED THE SLIPPERY CONDITION, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.
The Town’s Actual or Constructive Notice of a Sidewalk Defect Does Not Obviate the Written Notice Requirement
Civil Contempt Finding Appropriate—Defendant Failed to Comply With Order to Pay Attorney’s Fees
Cause of Action Based Upon Limited Sight Condition (Line of Sight Blocked by Tree) Should Have Been Dismissed—No Written Notice of the Condition/Cause of Action Based Upon Allegations the Town Created the Dangerous Intersection by the Painting of Roadway Lines and the Absence of a Traffic Control Device Not Subject to the Written Notice Requirement/Because There Was No Study of the Intersection, the Town Could Not Demonstrate Its Entitlement to Qualified Immunity

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominium Corporations
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • County Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Equitable Recoupment
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Professional Malpractice
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Town Law
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trusts and Estates
  • Uncategorized
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Village Law
  • Water Law
  • Workers' Compensation
  • Zoning

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF CONDOMINIUM OWNER STATED A CAUSE OF ACTION AGAINST THE CONDOMINIUM... FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION...
Scroll to top