The 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. The plaintiff may establish a payment default by an admission made in response to a notice to admit, pursuant to CPLR 3212[b], 3123, by an affidavit from a person having personal knowledge of the facts, pursuant to CPLR 3212[b], or by other evidence in admissible form.
Here, the plaintiff failed to establish, prima facie, the defendants' default in payment by submitting the affidavit of an employee of its loan servicer. The affiant averred that, based upon his review of unspecified business records, the defendants defaulted in making monthly payments in October 2008. However, the affiant did not aver that he had personal knowledge of the defendants' alleged default in payment. He also failed to identify which records he relied on to assert a default in payment, and the notice of default annexed to the affidavit was insufficient to establish the alleged default in payment.
Bank of N.Y. Mellon v. Mannino, NY Slip Op 05675 (2d Dep't October 12, 2022)
