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
DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED.
THE DEFENDANT DID NOT HAVE STANDING TO MOVE TO SUPPRESS THE GUN FOUND UNDER HIS SEAT IN THE CAR; THE PEOPLE DID NOT RELY ON THE STATUTORY PRESUMPTION THAT THE OCCUPANTS OF A CAR POSSESS CONTRABAND IN THE CAR; RATHER THE PEOPLE RELIED ON THE TESTIMONY OF A POLICE OFFICER WHO SAW DEFENDANT PLACE AN OBJECT UNDER HIS SEAT; AFTER DEFENDANT GOT OUT OF THE CAR, THE BARREL OF THE GUN WAS IN PLAIN VIEW (SECOND DEPT).
PLAINTIFF ALLEGED THE DRIVER WORKING FOR A LIVERY CAB COMPANY (CURB) AND THE NEW YORK CITY TRANSIT AUTHORITY (NYCTA) DROPPED HIM OFF NEAR A HOLE IN THE ROAD WHICH CAUSED HIM TO FALL; THE RESPONDEAT SUPERIOR (AGENCY) CAUSE OF ACTION SURVIVED; BUT THE COMPLAINT DID NOT SUPPORT THE NEGLIGENT HIRING, RETENTION AND SUPERVISION CAUSE OF ACTION (SECOND DEPT). ​
QUESTION OF FACT WHETHER DEFENDANT’S EMPLOYEE SAW WHAT HE SHOULD HAVE SEEN BEFORE THE EMPLOYEE’S GARBAGE CART COLLIDED WITH PLAINTIFF’S SCOOTER AS PLAINTIFF BACKED OUT OF AN ELEVATOR (SECOND DEPT).
WHEN DEFENDANT’S ATTORNEY WAS SUSPENDED ANY FURTHER PROCEEDINGS IN THIS FORECLOSURE ACTION WERE STAYED; NEITHER PROCEDURE FOR LIFTING THE STAY WAS INVOKED; DEFENDANT’S MOTION TO VACATE SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Failure to Pronounce the Amount of Restitution at Sentencing Survives Waiver of Appeal and Requires Vacation of the Sentences and Remittal
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF TESTIFIED OTHER SAFETY DEVICES (LADDERS, SCAFFOLDS) WERE AVAILABLE AND DID NOT DEMONSTRATE HIS ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS INJURIES (SECOND DEPT).
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (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...