On December 14, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in U.S. Bank N.A. v. Prinsecita Esther Corp., 2021 NY Slip Op. 32713(U), denying a motion for summary judgment for failure to support it by admissible proof, explaining:
Generally, to establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and admissible evidence of the borrower’s default. Where a plaintiff establishes prima facie entitlement to judgment. the burden then shifts to the defendant to raise a triable issue of fact as to a bona fide defense to the action.
Here, US Bank did not establish its prima facie entitlement to summary judgment on any of its three causes of action in the complaint because it failed to submit any admissible evidence in support of its unverified complaint, which only alleges causes of action for foreclosure, to collect on the guaranty and to correct a scrivener’s error in the mortgage regarding the description of the Property.
Although US Bank submitted copies of the notes, mortgages and the guaranty, it has not established its prima facie entitlement to summary judgment because it failed to submit any admissible evidence that Rodriguez executed the PHMS or Velocity mortgages and notes on behalf of Prinsecita and that Prinsecita defaulted under either of the mortgages. US Bank’s counsel’s affirmation regarding the execution of the loans and defendants’ alleged payment default constitute inadmissible hearsay, and counsel fails to lay any foundation for the loan documents and mortgage records annexed to his affirmation. Additionally, US Bank’s Statement of Undisputed Facts is unverified and is based on Rodriguez’s deposition testimony, the transcript of which is not included in the record for this court’s consideration.
(Internal citations omitted).