You are here: / / THE BANK FAILED TO PROVE STANDING TO FORECLOSE BECAUSE THE NECESSARY BUSINESS...
, ,

THE BANK FAILED TO PROVE STANDING TO FORECLOSE BECAUSE THE NECESSARY BUSINESS RECORDS WERE NOT ATTACHED TO THE FOUNDATIONAL AFFIDAVITS; HOWEVER, THE DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THEY FAILED TO AFFIRMATIVELY PROVE THE BANK DID NOT HAVE STANDING (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action failed to prove it had standing to foreclose because the necessary business records were not attached to the foundational affidavits. The court noted that Supreme Court properly denied defendants’ motion for summary judgment because the defendants did not prove the bank did not have standing:

“Although [t]he foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Without the introduction of the records themselves, “a witness’s testimony as to the contents of the records is inadmissible hearsay” … .

Here, the plaintiff relied on the affidavits from Jackson and Smith to demonstrate that it had possession of the note prior to commencing this action. The defendants correctly contend that neither Jackson nor Smith attached any business records to their affidavits. Thus, the assertions of Jackson and Smith that the plaintiff had possession of the note prior to commencing this action were inadmissible hearsay and insufficient to establish, prima facie, the plaintiff’s standing … . Bank of N.Y. v Levy, 2024 NY Slip Op 05085, Second Dept 10-16-24

Similar failure of proof in the context of the confirmation of the referee’s report in a foreclosure proceeding, i.e., the failure to produce the business records relied upon by the affiant. Deutsche Bank Natl. Trust Co. v Quaranta, 2024 NY Slip Op 05090, Second Dept 10-16-24

​Practice Point: In a foreclosure proceeding, the failure to attach or produce the business records relied upon by an affiant renders the affidavit inadmissible hearsay.

Practice Point: The bank’s failure to prove it has standing to foreclose (due to the failure to attach the relevant business records to a foundational affidavit) does not entitle defendants to summary judgment on the standing issue. Defendants must affirmatively prove the bank does not have standing to warrant summary judgment in their favor.

You might also like
A PLAINTIFF BRINGING A SUMMARY JUDGMENT MOTION MUST ADDRESS AFFIRMATIVE DEFENSES RAISED IN THE ANSWER; HERE IN THIS TRAFFIC ACCIDENT CASE THE GRAVES AMENDMENT, WHICH PROVIDES THAT THE OWNER OF A LEASED CAR IS NOT LIABLE FOR THE NEGLIGENCE OF THE DRIVER, WAS RAISED AS AN AFFIRMATIVE DEFENSE; BECAUSE PLAINTIFF DID NOT ADDRESS THAT ISSUE IN THE SUMMARY JUDGMENT MOTION, THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).
DEFENDANTS DEMONSTRATED THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE CARDBOARD ON THE SIDEWALK WHICH CAUSED PLAINTIFF TO SLIP AND FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).
MOTION TO AMEND THE CAPTION TO CORRECT THE NAMES OF THE PARTIES SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THERE IS NO REQUIREMENT THAT A MOTION TO CONFIRM A REFEREE’S REPORT IN A FORECLOSURE PROCEEDING BE MADE BEFORE A JUDGMENT OF FORECLOSURE MAY BE GRANTED (SECOND DEPT).
SUPREME COURT DID NOT MAKE THE REQUIRED FINDINGS RE: WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; MATTER REMITTED (SECOND DEPT).
THE BUILDER OF THE HOUSE WAS NOT A NECESSARY PARTY IN THIS ACTION AGAINST THE SELLER BY THE PURCHASER; EVEN IF THE BUILDER WERE A NECESSARY PARTY, THE COURT SHOULD HAVE SUMMONED THE BUILDER ITSELF PURSUANT TO CPLR 1001 (b) RATHER THAN DISMISSING THE COMPLAINT (SECOND DEPT).
In a Prohibition Proceeding Brought Under Article 78, Trial Judge’s Mistrial Order Deemed Improper, Retrial Precluded​
PLAINTIFF’S EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY IN THIS SLIP AND FALL CASE; NEW TRIAL ORDERED (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

DEFENSE COUNSEL’S REQUEST FOR AN ADJOURNMENT OF THE SORA RISK-LEVEL PROCEEDING... TENURED TEACHERS WERE NOT ENTITLED TO A HEARING BEFORE BEING PLACED ON LEAVE...