Practice point: In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default. 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.
Application: 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 on the ground that the plaintiff failed to establish, prima facie, the defendants' default in payment. In an affidavit of the plaintiff's vice president, which the plaintiff submitted in support of its motion for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, The affiant did not aver that he had personal knowledge of the defendants' alleged default in payment. To the extent that his knowledge was based on his review of business records, he did not identify what records he relied on and he did not attach them to his affidavit. Thus, the plaintiff failed to submit evidence in admissible form to establish the defendants' default. Since the plaintiff failed to establish the defendants' default in payment, it failed to establish its prima facie entitlement to judgment as a matter of law, as well as its entitlement to an order of reference and a judgment of foreclosure and sale.
Banc of Cal., N.A. vs. Plumbing Supply Distributor., LLC, NY Slip Op 05510 (2d Dep't September 30, 2026)
