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PLAINTIFF BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s evidence of standing in this foreclosure action was inadmissible hearsay:

… [T]he plaintiff submitted … the affidavit of James Green, a vice president of loan documentation for Wells Fargo Bank, N.A., the plaintiff’s loan servicer. Green averred, based upon his review of “the business records relating to the subject mortgage loan,” that the plaintiff obtained possession of the note on June 14, 2006, and was in possession of the note as of the commencement of the action. However, Green did not attest that he was personally familiar with the record-keeping practices and procedures of the entity that generated the records or that those records were incorporated into the loan servicer’s records and routinely relied upon by the loan servicer in its own business. Thus, Green failed to lay a foundation for the admissibility of the records he relied upon to support his claim that the plaintiff had possession of the note as of the commencement of the action … . US Bank N.A. v Weinman, 2021 NY Slip Op 04051, Second Dept 6-23-21

 

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OUT-OF-POSSESSION LANDLORDS FAILED TO DEMONSTRATE THAT THE SLANTED FLOOR OF THE IN-GROUND POOL WAS NOT A DANGEROUS CONDITION AND THAT THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE WAY THE POOL WAS BUILT, THE LANDLORDS’ MOTION FOR SUMMARY JUDGMENT IN THIS DIVING ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
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TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT.
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FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY FOR TWO DISTINCT REASONS, THE 2007 COMPLAINT WAS DISMISSED FOR LACK OF STANDING AND THEREFORE DID NOT SERVE TO ACCELERATE THE DEBT, THE SECOND ACTION, BROUGHT BY A SUCCESSOR IN INTEREST, WAS STARTED WITHIN SIX MONTHS OF THE DISMISSAL OF THE INITIAL ACTION AND WAS THEREFORE TIMELY UNDER CPLR 205 [a] (SECOND DEPT).

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