On September 10, 2025, the Second Department issued a decision in Bank of Am., N.A. v. Barnett, 2025 NY Slip Op. 04861, holding that summary judgment on a foreclosure action was denied because the servicer’s supporting affidavit failure to establish a foundation for the facts it contained, explaining:
A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures. Moreover, computations based upon a review of unidentified and unproduced business records, constitute inadmissible hearsay and lack probative value.
Here, the referee relied on an affidavit of Tom Croft, an SVP of default of Carrington Mortgage Services, LLC, attorney-in-fact for the plaintiff. Croft’s affidavit was insufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 4518(a), because he failed to attest that he was personally familiar with the record-keeping practices and procedures of his employer or the plaintiff. Moreover, Croft’s computations were based upon a review of unidentified and unproduced business records and, consequently, constituted inadmissible hearsay and lacked probative value on that additional ground. The error in relying on Croft’s hearsay evidence was not harmless, as, contrary to the plaintiff’s contention, the referee’s determination is not substantially supported by any admissible evidence in the record.
(Internal quotations and citations omitted).