You are here: / / THE AFFIDAVIT SUBMITTED BY THE BANK TO PROVE (1) STANDING TO FORECLOSE...
, ,

THE AFFIDAVIT SUBMITTED BY THE BANK TO PROVE (1) STANDING TO FORECLOSE THE REVERSE MORTGAGE, (2) DEFAULT AND (3) NOTICE WAS NOT ACCOMPANIED BY THE RELEVANT BUSINESS RECORDS, RENDERING THE AFFIDAVIT HEARSAY (FIRST DEPT). ​

The Second Department, reversing Supreme Court, determined the bank’s summary judgment motion in this reverse mortgage foreclosure proceeding should not have been granted.  The affidavit submitted to prove standing, default and notice was not accompanied by the relevant business records, rendering the affidavit inadmissible hearsay:

CIT Bank [plaintiff] submitted an affidavit of its assistant secretary, Elizabeth Birk, who, upon review of the business records maintained by CIT Bank, averred that CIT Bank was the “holder of the instrument of indebtedness at the time this action was commenced,” the borrower was “in default,” the “mortgage debt remains unpaid,” and a default notice “was thereafter duly sent.” However, since Birk failed to attach or otherwise incorporate any of CIT Bank’s business records to her affidavit, her assertions regarding the contents of such business records constituted inadmissible hearsay … . CIT Bank, N.A. v Fernandez, 2022 NY Slip Op 01764, Second Dept 3-16-22

Similar issue (no business records attached to the bank’s affidavit demonstrating defendant’s default) and result in JPMorgan Chase Bank, Natl. Assn. v Newton, 2022 NY Slip Op 01777, Second Dept 3-16-22

Practice Point: An affidavit submitted in support of summary judgment which purports to demonstrate what business records say, but which is not accompanied by those business records, in inadmissible hearsay.

 

You might also like
Insurer of Lessee Obligated to Defend and Indemnify the Owner/Lessor of the Premises (Named as an Additional Insured) Re: a Slip and Fall on the Sidewalk in Front of the Premises/Use of the Sidewalk Constitutes “Use of the Leased Premises” Within the Meaning of the Policy
PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT).
BECAUSE THE FOIL REQUESTS REQUIRED THE RESPONDENT TO CREATE NEW DOCUMENTS, THE REQUESTS SHOULD HAVE BEEN DENIED (SECOND DEPT).
ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT TO SUPPORT THE CONVICTIONS STEMMING FROM AN ATTACK ON THE COMPLAINANT, THOSE CONVICTIONS WERE DEEMED AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OR ABSENCE OF IDENTIFICATION EVIDENCE (SECOND DEPT).
FAMILY COURT’S TERMINATION OF MOTHER’S PARENTAL RIGHTS WAS NOT SUPPORTED BY THE EVIDENCE, MOTHER WAS DEALING WITH HER MENTAL HEALTH AND DRUG PROBLEMS AND THE SPECIAL NEEDS OF THE CHILDREN WERE BEING ADDRESSED (SECOND DEPT). ​
A STORM DRAIN ALLEGEDLY CAUSED FLOODING ON PLAINTIFFS’ PROPERTY; THE NEGLIGENT DESIGN CAUSE OF ACTION AGAINST THE VILLAGE ACCRUED WHEN THE STORM DRAIN WAS INSTALLED, NOT WHEN THE FLOODING OCCURRED, AND WAS TIME-BARRED (SECOND DEPT).
THE FACT THAT THE DEFENDANT IN THIS FORECLOSURE ACTION FILED FOR BANKRUPTCY DID NOT RELIEVE THE PLAINTIFF OF THE OBLIGATION TO COMPLY WITH THE NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
VILLAGE DID NOT DEMONSTRATE IT DID NOT CREATE THE DEFECT IN THIS SIDEWALK/TREE-WELL SLIP AND FALL CASE; THEREFORE THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT 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

THE PLAINTIFF’S COMPLAINT IN THIS FORECLOSURE ACTION DID NOT INCLUDE ALLEGATIONS... IN THIS CHILD VICTIM’S ACT PROCEEDING PLAINTIFF ALLEGED ABUSE BY A PRIEST...