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PROOF OF DEFENDANTS’ DEFAULT WAS INADMISSIBLE HEARSAY BECAUSE THE UNDERLYING BUSINESS RECORDS WERE NOT SUBMITTED WITH THE SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ default in this foreclosure action was not demonstrated because the relevant business were described but not submitted. The description was therefore hearsay:

… [T]he plaintiff submitted copies of the note and mortgage, and an affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the servicer for the loan. Based on her review of business records in the possession of SPS, Benight averred that the defendants defaulted in payment in August 2014. However, the only business records annexed to and incorporated in the affidavit with regard to the default was a notice of default dated March 3, 2015 … . Although Benight established that she was familiar with SPS’s record-keeping practices and procedures, no payment records were proffered with the motion. “‘[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 N.A. v Rowe, 2021 NY Slip Op 03209, Second Dept 5-19-21

 

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