BANK’S EVIDENCE OF DEFENDANT’S DEFAULT WAS INADMISSIBLE HEARSAY, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the bank’s proof that defendant (Bazigos) defaulted on the loan was inadmissible hearsay:

“In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default” … . “A plaintiff may establish a payment default by an admission made in response to a notice to admit (see CPLR 3212[b]; 3123), by an affidavit from a person having [personal] knowledge of the facts’ (CPLR 3212[b]), or by other evidence in admissible form'” … .

Here, Bluford (a bank vice-president), whose knowledge was based on business records, did not actually attach or otherwise incorporate into her affidavit any business records showing that Bazigos had defaulted on the note. Thus, her affidavit constituted inadmissible hearsay and lacked probative value on the issue of Bazigos’s default … . HSBC Bank USA, N.A. v Bazigos, 2019 NY Slip Op 06757, Second Dept 9-25-19