Not a Lexis Advance subscriber? Try it out for free.

Bank of N.Y. Mellon v Gordon

Supreme Court of New York, Appellate Division, Second Department

March 27, 2019, Decided

2015-10709

Case Summary

Overview

HOLDINGS: [1]-A mortgagee established its standing in a foreclosure action by submitting a business records affidavit to prove physical possession of the note, endorsed in blank, at the time the action was commenced, and the borrower failed to raise a triable issue of fact in opposition because the mortgage passed with the debt as an inseparable incident; [2]-Because the affiant sought only to lay a foundation for a business record produced and maintained by her own employer, the business record exception to the hearsay rule in CPLR 4518(a) required only that the affiant demonstrate familiarity with her employer's record-keeping practices and procedures, not those of other entities such as the original lender; [3]-Another affidavit that referenced a document created by the original lender was insufficient, absent personal knowledge of its practices, to prove default on summary judgment.

Outcome

Affirmed as modified.

LexisNexis® Headnotes

 

 

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Civil Procedure > ... > Summary Judgment > Burdens of Proof > Movant Persuasion & Proof

Civil Procedure > Judgments > Summary Judgment > Supporting Materials

HN1  Entitlement as Matter of Law

A motion for summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. CPLR 3212(b). Such a motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. To make a prima facie showing, the moving party must demonstrate its entitlement to summary judgment by submission of proof in admissible form. Admissible evidence may include affidavits by persons having knowledge of the facts and reciting the material facts.

 

Civil Procedure > ... > Summary Judgment > Burdens of Proof > Nonmovant Persuasion & Proof

HN2  Nonmovant Persuasion & Proof

Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.

 

Civil Procedure > Judgments > Summary Judgment > Evidentiary Considerations

HN3  Evidentiary Considerations

In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. Accordingly, the court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned. Where credibility determinations are required, summary judgment must be denied.

Access the full text caseNot a Lexis Advance subscriber? Try it out for free.

171 A.D.3d 197 ; 97 N.Y.S.3d 286 ; 2019 N.Y. App. Div. LEXIS 2338 ; 2019 NY Slip Op 02306 ; 2019 WL 1372075

 [1]  Bank of New York Mellon, etc., respondent, v Dushaun Gordon, appellant, et al., defendants. (Index No. 15788/12)

Notice: THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.

THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.