On June 26, 2024, the Second Department issued a decision in MTGLQ Invs., L.P. v. Daleo, 2024 NY Slip Op. 03477, holding that an affidavit submitted to prove non-payment of a loan must include the business records upon which the affidavit is based, explaining:
[T]he plaintiff otherwise failed to establish its prima facie entitlement to judgment as a matter of law. In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default. Although the plaintiff submitted the mortgage and the unpaid note, it failed to submit admissible evidence of the default.
An affiant’s assertion regarding the defendant’s default, without the business records upon which he or she relied in making such an assertion, constitutes inadmissible hearsay. It is the business record itself that serves as proof of the matter asserted and not the foundational affidavit.
Here, the plaintiff submitted an affidavit of an employee of the servicer and attorney-in-fact for the plaintiff, which set forth that, according to the business records that I have reviewed the Defendant Roy Daleo failed to comply with the terms of the Note and Mortgage by defaulting in the monthly payment that was due on April 1, 2013 and monthly thereafter. The affiant did not attach the business records upon which she relied in making her assertion regarding the defendant’s alleged default, and no such records were attached to the plaintiff’s motion. The affidavit of the plaintiff’s witness was therefore inadmissible hearsay and failed to satisfy the plaintiff’s prima facie burden.
(Internal quotations and citations omitted).