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THE BANK DID NOT PROVE DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; THE AVERMENTS ABOUT DEFENDANT’S DEFAULT WERE BASED UPON THE AFFIANT’S REVIEW OF BUSINESS RECORDS; BECAUSE THE RECORDS WERE NOT ATTACHED, THE AFFIDAVIT WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff bank did not prove defendant’s default because the relevant business records were not attached to the affidavit describing the default:

“Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form” … . Here, the affidavit of Trey Cook, a document execution specialist for the plaintiff’s servicing agent, failed to provide proof of the defendant’s default in payment of the note in admissible form. Although Cook averred that he had personal knowledge of how the servicing agent’s business records were kept and maintained and that, based on his review of those business records, the defendant “failed to make the payment that was due for July 1, 2014 under the Loan Documents and . . . failed to make subsequent payments to bring the loan current,” the business records on which Cook relied were not annexed to his affidavit. Thus, Cook’s assertions regarding the defendant’s alleged default constituted inadmissible hearsay … . Deutsche Bank Trust Co. Ams. v Tagor, 2025 NY Slip Op 03040, Second Dept 5-21-25

Practice Point: An affidavit which avers facts drawn from the affiant’s review of business records is inadmissible hearsay if the records are not attached.

 

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