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PLAINTIFF’S PROOF OF STANDING IN THIS FORECLOSURE ACTION WAS NOT IN ADMISSIBLE FORM, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence that the plaintiff had standing in this foreclosure action did not meet the requirements of the business records exception to the hearsay rule and plaintiff’s summary judgment motion should not have been granted:

In support of its motion, the plaintiff relied on the affidavit of Gabriel De Souza, a contract management coordinator for Ocwen Loan Servicing, LLC (hereinafter Ocwen), which serviced the subject mortgage for the plaintiff. De Souza indicated that his knowledge of this case was based on his “review of the business records,” and asserted that the plaintiff was “in possession of the Note at the time of commencement of this action.” He did not indicate that the business records of the plaintiff had been incorporated into Ocwen’s business records. Moreover, the plaintiff failed to demonstrate the admissibility of the assertions made by De Souza or the records relied upon by him under the business records exception to the hearsay rule (see CPLR 4518[a] … ). Inasmuch as the plaintiff’s motion was based on evidence that was not in admissible form, it failed to establish its prima facie entitlement to judgment as a matter of law … . Deutsche Bank Natl. Trust Co. v Lee, 2019 NY Slip Op 02313, Second Dept 3-27-19

 

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