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ALTHOUGH THE BANK IN THIS FORECLOSURE ACTION SUBMITTED AN AFFIDAVIT TO DEMONSTRATE DEFENDANT’S DEFAULT, AND THE AFFIDAVIT QUOTED FROM THE RELEVANT BUSINESS RECORDS, THE RECORDS THEMSELVES WERE NOT SUBMITTED, RENDERING THE AFFIDAVIT HEARSAY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the band did not prove defendant defaulted on the note in this foreclosure action. The affidavit which discussed the relevant business records (apparently quoting from them) was hearsay. The business records themselves were not submitted:

While the affidavit submitted by the plaintiff made the requisite showing that the affiant was familiar with the plaintiff’s record-keeping practices and procedures with respect to the payment history, the affiant failed to submit any business record substantiating the alleged default … . “While 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” … . “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Christiana Trust v Corbin, 2023 NY Slip Op 04298, Second Dept 8-16-23

Practice Point: Where business records are necessary proof (here to prove defendant’s default in a foreclosure action), it is not enough to submit an affidavit quoting from the records, which is hearsay that will not support summary judgment. The records themselves must be authenticated and submitted.

 

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