On May 13, 2026, the Second Department issued a decision in Deutsche Bank Natl. Trust Co. v. PF Holding, LLC, 2026 NY Slip Op. 02967, holding that the plaintiff was not entitled to summary judgment because of its failure to submit the business records upon which its motion relied, explaining:
Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default. The plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law. Where the plaintiff fails to do so, its motion should be denied, regardless of the sufficiency of the defendant’s opposition papers.
Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form. The business record exception to the hearsay rule applies to a writing or record and it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without the introduction of the records themselves, a witness’s testimony as to the contents of the records is inadmissible hearsay.
Here, in support of its motion, in effect, for summary judgment and for an order of reference, the plaintiff submitted an affidavit of Jennifer Ann Lozano, an employee of Carrington Mortgage Services, LLC (hereinafter Carrington), the plaintiff’s servicer and attorney-in-fact. Although Lozano attested that she was familiar with Carrington’s record-keeping practices, and that, based on her review and examination of the records, Basher failed to tender the mortgage installment which became due and payable on February 1, 2010, and failed to tender subsequent installments, Lozano neither identified the business records upon which she relied, nor annexed them to her affidavit. Thus, Lozano’s assertions constituted inadmissible hearsay, and were therefore insufficient to establish the alleged default in payment.
(Internal quotations and citations omitted).