You are here: / / ONCE AGAIN, BECAUSE THE RELEVANT BUSINESS RECORDS WERE NOT ATTACHED TO...
, ,

ONCE AGAIN, BECAUSE THE RELEVANT BUSINESS RECORDS WERE NOT ATTACHED TO THE AFFIDAVITS, THE STATEMENTS IN THE AFFIDAVITS WERE HEARSAY; PLAINTIFF BANK DID NOT PROVE STANDING TO FORECLOSE OR DEFENDANT’S DEFAULT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not prove standing and did not prove defendant’s default because the relevant business records were not attached to the relevant affidavits (yet another of the hundreds of reversals on this issue):

… “‘[i]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted'” … . Thus, “[w]hile a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay” … . In addition, “‘[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures'” … . Here, neither affidavit relied upon by the plaintiff to establish its physical possession of the note stated that the affiant had personal knowledge of … the plaintiff’s record-keeping practices, and the affiants did not annex the records that they relied upon to their affidavits. Thus, the affidavits were inadmissible hearsay lacking in evidentiary value.

Likewise, without the submission of the business records upon which she relied, Ballard’s assertions regarding the defendant’s alleged default on the loan were inadmissible … . HSBC Bank USA, N.A. v Pacifico, 2024 NY Slip Op 04198, Second Dept 8-14-24

Practice Point: If the business records described in an affidavit are not attached, the statements in the affidavit about the records are inadmissible hearsay.

 

You might also like
INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT).
Mother’s Parental Rights Should Not Have Been Terminated Based Upon a Violation of a Suspended Judgment—Best Interests of the Child Should Have Been Considered
GRANDMOTHER ENTITLED TO HEARING ON WHETHER SHE HAS STANDING TO PETITION FOR VISITATION.
PLAINTIFF SUBMITTED AN AFFIDAVIT TO REMEDY DEFECTS IN THE COMPLAINT IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS; SUPREME COURT SHOULD HAVE CONSIDERED THE AFFIDAVIT; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT DID NOT ADEQUATELY EXPLAIN HER FAILURE TO RECEIVE THE SUMMONS AND COMPLAINT WHICH WERE MAILED TWICE; THEREFORE DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED; STRONG DISSENT (SECOND DEPT).
IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT).
FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO DETERMINE PARENTAL ACCESS TO THE PARTIES AND SHOULD NOT HAVE MADE FINDINGS IN THE ABSENCE OF A HEARING (SECOND DEPT).
NO EVIDENCE THREE WEAPONS IN A SAFE WERE POSSESSED BY THREE SEPARATE ACTS, SENTENCES SHOULD HAVE BEEN CONCURRENT, DECISIONS TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (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

​HERE THE DEFENDANTS DID NOT PRESENT A REASONABLE EXCUSE FOR FAILING TO APPEAR... THE USUAL PROHIBITIONS RE: VACATING ORDERS ISSUED OPON A PARTY’S DEFAULT...