On September 11, 2024, the Second Department issued a decision in Wilmington Sav. Fund Socy., FSB v. E39 St., LLC, 2024 NY Slip Op. 04417, holding that a lender was not entitled to summary judgment in a foreclosure action because its affiant lacked personal knowledge of the borrower’s default, explaining:
Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default. A plaintiff may establish a payment default by an admission made in response to a notice to admit, by an affidavit from a person having personal knowledge of the facts, or by other evidence in admissible form.
Here, in support of its motion, the plaintiff submitted the affirmation of its counsel, Jennie Shnayder, who attested to the borrower’s default in payment. However, Shnayder stated that the basis of her knowledge was her review of the complaint, and she did not attest that she had personal knowledge of the defendants’ alleged default in payment or annex to her affirmation any other evidence thereof in admissible form. Contrary to the plaintiff’s contention on appeal, the notice of default annexed to Shnayder’s affirmation was insufficient to establish the alleged default in payment.
Accordingly, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, regardless of the sufficiency of the opposition papers.
(Internal quotations and citations omitted).