You are here: / / THE BUSINESS RECORDS REFERRED TO IN THE PLAINTIFF’S AFFIDAVIT DEMONSTRATING...
,

THE BUSINESS RECORDS REFERRED TO IN THE PLAINTIFF’S AFFIDAVIT DEMONSTRATING DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION WERE NOT ATTACHED, RENDERING THE AFFIDAVIT HEARSAY (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the failure to submit the business records referred to in plaintiff’s affidavit rendered the affidavit hearsay. Therefore plaintiff bank did not present prima facie proof of defendant’s default:

… [T]he plaintiff submitted an affidavit of an employee of its loan servicer, who averred that he reviewed certain business records maintained by the loan servicer and the defendant defaulted in making payments on the mortgage debt. However, the affiant failed to submit any business record substantiating the alleged default … . “Conclusory affidavits lacking a factual basis are without evidentiary value” … . 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” … . Accordingly, the affiant’s assertions regarding the defendant’s alleged default, without the business records upon which he relied in making those assertions, constituted inadmissible hearsay … . MTGLQ Invs., L.P. v Rashid, 2023 NY Slip Op 00859, Second Dept 2-15-23

Practice Point: An affidavit based upon business records which are not attached is hearsay.

 

You might also like
DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF HOMEOWNER WAS NOT ENTITLED TO PAYMENTS MADE TO AN UNLICENSED HOME IMPROVEMENT CONTRACTOR FOR WORK PERFORMED SOLELY ON THE GROUND THAT THE CONTRACTOR WAS UNLICENSED (SECOND DEPT).
NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED.
DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND THE ANSWER DESPITE THE FAILURE TO MAKE A PRE-ANSWER MOTION TO DISMISS; THE DEFENDANT GETS A SECOND CHANCE TO ADD AN AFFIRMATIVE DEFENSE IF THE COURT GRANT’S LEAVE TO AMEND (SECOND DEPT). ​
Question of Fact Whether Risk of Slipping on a Diving Board Was Increased by Worn Traction Strips
THE AFFIDAVIT RELIED UPON BY PLAINTIFF IN THIS FORECLOSURE ACTION TO PROVE DEFENDANT’S DEFAULT DID NOT IDENTIFY OR ATTACH THE RELEVANT BUSINESS RECORDS AND THEREFORE THE AFFIDAVIT HAD NO PROBATIVE VALUE (SECOND DEPT).
THE 90-DAY DEMAND REQUIRED BY CPLR 3216 WAS NOT PROVIDED BY THE COURT’S ORDER; THE ACTION SHOULD HAVE BEEN RESTORED TO THE ACTIVE CALENDAR WITHOUT A SHOWING OF MERIT; THE ISSUE, FIRST RAISED ON APPEAL, WAS PROPERLY CONSIDERED BY THE APPELLATE COURT (SECOND DEPT).
STATUTE OF LIMITATIONS FOR A DECLARATORY JUDGMENT ACTION IS DETERMINED BY THE NATURE OF THE UNDERLYING ACTION, HERE CONVERSION AND FRAUD (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A BREACH OF CONTRACT ACTION IS NOT PROPERLY CONVERTED TO AN ARTICLE 78 PROCEEDING;... THE JUDGE IN THIS CUSTODY PROCEEDING SHOULD NOT HAVE SUSPENDED FATHER’S...