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THE BANK’S EVIDENCE OF STANDING DID NOT INCLUDE THE BUSINESS RECORDS REFERRED TO IN THE LOAN SERVICER’S AFFIDAVIT, RENDERING THE AFFIDAVIT HEARSAY; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence purporting to demonstrate the bank’s standing in this foreclosure action was insufficient. Therefore the bank’s motion for summary judgment should not have been granted:

… [T]he plaintiff submitted an affidavit of possession from Nichole Renee Williams, an employee of its loan servicer, who averred, inter alia, that, based upon her review of business records purportedly attached to the motion papers, the plaintiff was in physical possession of the note on the date of commencement of the action. However, the plaintiff failed to identify and produce those business records referred to by Williams in her affidavit. “[E]vidence of the contents of business records is admissible only where the records themselves are introduced” … . “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Since Williams’ purported knowledge of the date that the plaintiff received the original note was based upon her review of unidentified and unproduced business records, her affidavit constituted inadmissible hearsay and lacked probative value … . Wells Fargo Bank, NA v Oziel, 2021 NY Slip Op 04388, Second Dept 7-15-21

 

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