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PLAINTIFF BANK’S REPRESENTATIVE RELIED ON UNIDENTIFIED DOCUMENTS WHICH WERE NOT ATTACHED TO HER AFFIDAVIT TO DEMONSTRATE DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s representative relied on business records which were not identified or attached to demonstrate defendant’s (Huertas’s) default in this foreclosure action. Therefore the plaintiff’s motion for summary judgment should not have been granted:

… [T]he plaintiff relied upon the affidavit of Crystal Dunbar, a foreclosure specialist of … the mortgage loan servicer for the plaintiff’s assignee … to show that Huertas had defaulted under the terms of the subject note by failing to make required monthly payments. In her affidavit, Dunbar stated that Huertas “defaulted under their note for $227,136.00 owing to the Plaintiff . . . by having failed to make monthly payments on September 01, 2009 to date.” Dunbar did not state that she had personal knowledge of the default, but averred that she had “personal knowledge of the [p]laintiff’s records and record making practices, and how such records [were] made, used and kept.” Dunbar’s affidavit was sufficient to provide a foundation for the admission, under the business records exception to the rule against hearsay (see CPLR 4518[a]), of records related to the subject mortgage … . However, Dunbar’s purported knowledge of Huertas’s default was based upon her review of unidentified business records, which she failed to attach to her affidavit. Accordingly, her assertions regarding Huertas’s default, without the business records upon which she relied in making those assertions, constituted inadmissible hearsay … . Bank of Am., N.A. v Huertas, 2021 NY Slip Op 04005, First Dept 6-23-21

 

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