On September 21, 2022, the Second Department issued a decision in U.S. Bank N.A. v. Zakarin, 2022 NY Slip Op. 05229, holding that a loan servicer’s affidavit was insufficient grounds for summary judgment because it did not identify and attach the business records that formed the grounds for her statement that the defendant had failed to pay, 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. A default in payment may be established by, among other possibilities, an affidavit from a person having personal knowledge of the facts or documents that meet the requirements of the business records exception to the rule against hearsay.
In support of its motion, the plaintiff relied upon the affidavit of Cynthia Wallace, an employee of Specialized Loan Servicing, LLC (hereinafter SLS), which allegedly serviced the loan on the plaintiff’s behalf. Wallace did not aver to have personal knowledge of the facts, and, instead, relied upon her review of certain records maintained by SLS. When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facie case, 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, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.
The plaintiff failed to demonstrate, prima facie, the defendant’s default in payment under the note. In her affidavit, Wallace stated that the defendant failed to make certain payments due under the terms of the note and mortgage, but she failed to identify the records that she relied upon and did not attach those records to her affidavit. Thus, her assertions as to the defendant’s default were inadmissible hearsay. Contrary to the plaintiff’s suggestion, a review of records maintained in the normal course of business does not vest an affiant with personal knowledge. Since Wallace’s affidavit was the only evidence of default proffered in support of its motion, the plaintiff failed to establish it prima facie entitlement to judgment as a matter of law.
(Internal quotations and citations omitted) (emphasis added).