A SUMMARY JUDGMENT MOTION REQUIRES ADMISSABLE EVIDENCE

In this case, a foreclosure is delayed due to the bank's failure to submit proper evidence in its motion papers.

SELENE FIN., LP v. Coleman, 2020 NY Slip Op 5962 - NY: Appellate Div., 2nd Dept. October 21, 2020:

".....

However, we agree with the defendant that the Supreme Court also should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer and affirmative defenses, and for an order of reference. "On its motion for summary judgment, the plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law" (Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782; see JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d 718, 719). "In an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default" (MLCFC 2007-9 Mixed Astoria, LLC v 36-02 35th Ave. Dev., LLC, 116 AD3d 745, 746). Where, as here, a defendant places standing in issue, the plaintiff must prove standing as part of its prima facie case (see U.S. Bank N.A. v Auguste, 173 AD3d at 932-933).

Here, although the plaintiff established its standing, the plaintiff failed to establish, through admissible evidence, the defendant's default in payment under the note. For evidence of default, the plaintiff relied upon the affidavit of a foreclosure manager employed by the plaintiff, wherein she attested, among other things, that the defendant defaulted under the loan in February 2011. By attesting that she was familiar with the record-making practices of her employer, that the records were made in the regular course of business, that it was the regular course of such business to make the record, and that the records were made "at or about the time of the event being recorded" (People v Kennedy, 68 NY2d 569, 580), the foreclosure manager satisfied the requirements for establishing a foundation for the admission of business records (see CPLR 4518[a]; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205). However, since the foreclosure manager failed to submit any of the business records upon which she contends she relied in making her affidavit, her averment as to the defendant's purported default "`constitute[s] inadmissible hearsay and lack[s] probative value'" (Federal Natl. Mtge. Assn. v Brottman, 173 AD3d 1139, 1141, quoting Bank of N.Y. Mellon v Gordon, 171 AD3d at 208-209). As "it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" (Bank of N.Y. Mellon v Gordon, 171 AD3d at 205), and "a witness's description of a document not admitted into evidence is hearsay" (U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772, 774), the assertions by the foreclosure manager as to the contents of the records were "inadmissible hearsay to the extent that the records she purport[ed] to describe were not submitted with her affidavit" (id. at 774; see JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1513, 1517).

Since the plaintiff failed to meet its prima facie burden, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer and affirmative defenses, and for an order of reference, without regard to the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."