On December 16, 2024, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Bates Holdings II LLC v. ZB Prospect Realty, LLC, 2024 NY Slip Op. 34366(U), holding that the absence of evidence of payment in business records is sufficient evidence of non-payment, explaining:
[T]here is no merit to the argument that the plaintiff failed to establish a prima facie case of default because there are no specific documents establishing non-payment. The mere fact there are no documents supporting non-payment does not mean the plaintiff based the proof of non-payment upon unidentified business records. The non-payment of an amount due is supported by the fact all the documents demonstrate a payment was due and there is no evidence any payment was made. A non-payment of a debt due, something that can properly be characterized as a non-action, may be proven by an examination of all the documents and testimony that no payment occurred. In Wells Fargo Bank, National Association. et al., v. Newhouse, 218 AD3rd 1117, 192 NYS3d 393 [4th Dept., 2023] the court the evidence necessary as affidavit of nonpayment. Indeed, the plaintiff’s evidence submitted does establish prima facie evidence of nonpayment.
(Internal citations omitted).