ALTHOUGH THE LOAN SERVICER’S AFFIDAVIT MAY HAVE LAID A PROPER FOUNDATION FOR THE DOCUMENTS DEMONSTRATING DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION, THE DOCUMENTS THEMSELVES WERE NOT PRODUCED, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not prove defendants’ default. The affidavit from the loan servicer may have laid a proper foundation for the relevant documents, but the business records themselves were not attached:

Even assuming that the subject affidavit established a sufficient foundation for the records relied upon, “it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . … [T]he affiant’s assertions regarding the defendants’ default, without the business records upon which he relied in making those assertions, constituted inadmissible hearsay … . U.S. Bank N.A. v Kahn Prop. Owner, LLC, 2022 NY Slip Op 03921, Second Dept 6-15-22

Practice Point: At the summary judgment stage, business records necessary to make out a prima facie case must be produced. An affidavit laying a proper foundation for the documents is inadmissible hearsay it the relevant business records themselves are not submitted.