Opinion
12070 Index No. 850250/17 Case No. 2019-03270
10-15-2020
BERKSHIRE BANK, Successor by Merger to First Choice Bank, Plaintiff–Respondent, v. Melissa FAWER, et al., Defendants–Appellants, Santander Bank, N.A., et al., Defendants.
The SAGE Law Firm Group PLLC, Buffalo (Kathryn Friedman of counsel), for appellants. Harris Beach PLLC, New York (Ross B. Hofherr of counsel), for respondent.
The SAGE Law Firm Group PLLC, Buffalo (Kathryn Friedman of counsel), for appellants.
Harris Beach PLLC, New York (Ross B. Hofherr of counsel), for respondent.
Renwick, J.P., Gesmer, Gonza´lez,Scarpulla, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered July 23, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff bank's motion for summary judgment on its claim against defendants borrowers Melissa Fawer and Mark Fawer and striking their answer and dismissing their affirmative defenses, unanimously affirmed, with costs.
Plaintiff established its standing by attaching the endorsed note to the complaint ( Bank of N.Y. Mellon v. Knowles, 151 A.D.3d 596, 57 N.Y.S.3d 473 [1st Dept. 2017] ). With regard to the facts of the default, defendants are correct that counsel's affirmation had no probative value (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Similarly, the affidavit of plaintiff's vice president lacked any foundation for the affiant's knowledge of the business records of plaintiff or its predecessor in interest (see Bank of Am., N.A. v. Brannon, 156 A.D.3d 1, 8, 63 N.Y.S.3d 352 [1st Dept. 2017] ). Here, however, the forbearance agreement submitted by plaintiff contained an admission of liability by defendants. This agreement established plaintiff's prima facie entitlement to judgment, and defendants did not come forward with evidence to raise a triable issue of fact.