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THE BANK DID NOT PRESENT ADMISSIBLE EVIDENCE OF DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present admissible evidence of defendants’ default in this foreclosure action:

… [T]he plaintiff failed to establish, prima facie, a default in payment by Vanterpool and Chalas [defendants]. While the plaintiff submitted an affidavit by someone with personal knowledge of the plaintiff’s loan servicer’s business practices and procedures, the affiant failed to submit any business record to substantiate the alleged default … . Further, “[w]hile a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay” … . “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . U.S. Bank Trust, N.A. v Vanterpool, 2020 NY Slip Op 07946, Second Dept 12-23-20

 

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THE EVIDENCE OF DEFENDANT’S DEFAULT WAS HEARSAY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT).
PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT CONCLUSORY AND THE ACTION SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND; A HOSPITAL WILL NOT BE VICARIOUSLY LIABLE FOR SURGERY COMPETENTLY PERFORMED BY HOSPITAL STAFF AT THE DIRECTION OF THE PRIVATE PHYSICIANS WHO DID THE PRIMARY SURGERY (SECOND DEPT).
EXCESSIVE QUESTIONING BY THE TRIAL JUDGE WHICH TOOK ON THE FUNCTION AND APPEARANCE OF AN ADVOCATE DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).
STANDING EVIDENCE DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED.
SUPREME COURT SHOULD NOT HAVE ORDERED DEFENDANT TO PAY PLAINTIFF’S ATTORNEY’S FEES AS A SANCTION FOR FRIVOLOUS CONDUCT BECAUSE THE CONDUCT DID NOT OCCUR WITHIN THE PROCEEDINGS BEFORE THE COURT (SECOND DEPT).
INSURED’S REFUSAL TO COOPERATE WITH INSURER RELIEVED INSURER OF LIABILITY FOR DEFAULT JUDGMENT AGAINST THE INSURED.

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