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THE AFFIDAVIT SUBMITTED BY THE BANK TO PROVE STANDING TO FORECLOSE LAID AN ADEQUATE FOUNDATION FOR THE RELEVANT BUSINESS RECORDS BUT THE RECORDS THEMSELVES WERE NOT SUBMITTED, RENDERING THE AFFIDAVIT HEARSAY; THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISION OF THE MORTGAGE, A CONDITION PRECEDENT (SECOND DEPT).

The Second Department, reversing Supreme Court determined the evidence that the bank had standing to bring the foreclosure action was insufficient and the bank did not demonstrate compliance with the notice provision of the mortgage, a condition precedent. Although the affidavit submitted by the bank laid a sufficient foundation for the business records described in the affidavit, the records themselves were not submitted:

Although the foundation for the admission of a business record may be provided by the testimony of the custodian, “it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . “Without submission of the business records, a witness’s testimony as to the contents of the records is inadmissable hearsay” … . HSBC Bank USA, N.A. v Boursiquot, 2022 NY Slip Op 02782, Second Dept 4-27-22

Similar issue (failure to submit records referenced in affidavits) and result in U.S. Bank N.A. v Tesoriero, 2022 NY Slip Op 02830, Second Dept 4-27-22

Practice Point: Even if an affidavit lays a proper foundation for business records, the affidavit is inadmissible hearsay if the records themselves are not also submitted.

 

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