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THE BANK’S DOCUMENTARY EVIDENCE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff bank did not demonstrate standing to bring the foreclosure action and the bank’s motion for summary judgment was properly denied:

“Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . “‘[E]vidence of the contents of business records is admissible only where the records themselves are introduced'” … . Without submission of the business records, a witness’s testimony as to the contents of the records is inadmissible hearsay (see CPLR 4518[a] … ). Here, Herberg’s [bank’s vice president’s] assertion, in effect, that the plaintiff was the holder of the note when it commenced the action appears to be based upon unproduced business records or upon confirmation of information from some other unproduced source, and is therefore not probative on the issue of the plaintiff’s standing … . Wells Fargo Bank, N.A. v Atedgi, 2020 NY Slip Op 07247, Second Dept 12-2-20

 

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WHETHER THE AGREEMENT TO ARBITRATE IS VALID IS A THRESHOLD ISSUE FOR THE COURT, NOT THE ARBITRATOR (SECOND DEPT). ​
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ONLY CONTRACTORS AND OWNERS AND THEIR AGENTS CAN BE LIABLE UNDER LABOR LAW 240(1) AND 241(6); HERE DEFENDANT DEMONSTRATED IT WAS NOT AN AGENT FOR ANY POTENTIALLY LIABLE PARTY BECAUSE IT EXERCISED NO SUPERVISORY CONTROL OVER THE WORKSITE (SECOND DEPT).
DEFENDANTS’ CONCLUSORY AND UNSUBSTANTIATED CLAIMS DID NOT REBUT THE SWORN ALLEGATIONS OF PROPER SERVICE AND MAILING OF THE SUMMONS, COMPLAINT AND REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1303 NOTICE IN THIS FORECLOSURE ACTION; THE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
SUPREME COURT HAD THE AUTHORITY UNDER CPLR 3001 TO ISSUE A DECLARATORY JUDGMENT ON THE PROPER RATE FOR POST-JUDGMENT INTEREST; ANOTHER COURT’S PRIOR DISCUSSION OF THE PROPER INTEREST RATE WAS MERELY ADVISORY (I.E., NOT ON THE MERITS) AND THEREFORE WAS NOT SUBJECT TO THE DOCTRINES OF RES JUDICATA, COLLATERAL ESTOPPEL OR LAW OF THE CASE (SECOND DEPT).
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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL... THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND...