Opinion
2015-07-22
Ackerman LLP, New York, N.Y. (Jordan M. Smith and Kathleen R. Fitzpatrick of counsel), for appellant.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action to recover damages for breach of contract and based on an account stated, the plaintiff appeals from an order of the Supreme Court, Kings County (Dear, J.), dated April 28, 2014, which denied its unopposed motion for summary judgment on the complaint and dismissing the defendant's counterclaim.
ORDERED that the order is affirmed, without costs or disbursements.
The Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint and dismissing the defendant's counterclaim. On its motion for summary judgment, the plaintiff had the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law ( seeCPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 561, 427 N.Y.S.2d 595, 404 N.E.2d 718). In support of its motion, the plaintiff submitted the affidavit of a business operations analyst for CMI, Inc., a company which serviced the defendant's loan on behalf of the plaintiff. The plaintiff's affiant averred that her knowledge of the relevant facts was based, inter alia, on a review of the plaintiff's records, including printouts of the defendant's payment history regarding a certain home equity loan.
The plaintiff's submissions were insufficient to establish its prima facie entitlement to judgment as a matter of law, as the plaintiff failed to demonstrate the admissibility of the records relied upon by its affiant under the business records exception to the hearsay rule ( seeCPLR 4518[a]; US Bank, N.A. v. Madero, 125 A.D.3d 757, 758, 5 N.Y.S.3d 105; JP Morgan Chase Bank, N.A. v. RADS Group, Inc., 88 A.D.3d 766, 767, 930 N.Y.S.2d 899). A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures ( see Palisades Collection, LLC v. Kedik, 67 A.D.3d 1329, 890 N.Y.S.2d 230; West Val. Fire Dist. No. 1 v. Village of Springville, 294 A.D.2d 949, 950, 743 N.Y.S.2d 215). Here, the plaintiff's affiant, who was employed by the plaintiff's loan servicer, did not allege that she was personally familiar with the plaintiff's record keeping practices and procedures and, thus, she did not lay a proper foundation for the admission of the defendant's payment history ( see JP Morgan Chase Bank, N.A. v. RADS Group, Inc., 88 A.D.3d at 767, 930 N.Y.S.2d 899; Palisades Collection, LLC v. Kedik, 67 A.D.3d 1329, 890 N.Y.S.2d 230; West Val. Fire Dist. No. 1 v. Village of Springville, 294 A.D.2d 949, 950, 743 N.Y.S.2d 215). Moreover, the plaintiff's affiant did not assert that she had personal knowledge of the defendant's payment history ( see JP Morgan Chase Bank, N.A. v. RADS Group, Inc., 88 A.D.3d at 767, 930 N.Y.S.2d 899). Thus, the plaintiff failed to satisfy its prima facie burden ( see U.S. Bank, N.A. v. Madero, 125 A.D.3d at 758, 5 N.Y.S.3d 105).
The plaintiff's remaining contentions either need not be reached in light of our determination, are without merit, or are not properly before this Court.
Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint and dismissing the defendant's counterclaim.