MORTGAGE FORECLOSURE - AGAIN THE EVIDENCE RULES APPLY IN SUMMARY JUDGMENT MOTIONS

American Home Mtge. Servicing, Inc. v Carnegie, 2020 NY Slip Op 01590, Decided on March 11, 2020, Appellate Division, Second Department:

"We agree with the Supreme Court's determination, upon reargument, that the plaintiff failed to establish, prima facie, that it had standing, as the plaintiff's asserted basis in its May 2016 motion—that standing was established through an affidavit of an employee of the plaintiff's current loan sub-servicer—is without merit (see Citibank, N.A. v Cabrera, 130 AD3d 861, 861; see also US Bank N.A. v Hunte, 176 AD3d 894, 896). The affidavit failed to lay the requisite foundation under the business records exception to the hearsay rule to support the admissibility of the records relied upon by the affiant for her assertion that the note was transferred to the plaintiff's custodian prior to the commencement of the action and remained in the possession of the plaintiff's custodian at the time of commencement (see US Bank N.A. v Hunte, 176 AD3d at 896; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 651-652). Moreover, the affiant's assertions as to the contents of the records were inadmissible without the submission of the records themselves (see Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205)."