On November 8, 2023, the Second Department issued a decision in Wells Fargo Bank, N.A. v. Carrington, 2023 NY Slip Op. 05632, holding that a supporting affidavit describing business records is insufficient to prove the existence of those records, explaining:
Here, the plaintiff failed to establish, prima facie, that it had standing to commence the action. In support of its motion for summary judgment, the plaintiff relied on an affidavit from Daniel Delpesche, an employee of Ocwen Loan Servicing, LLC (hereinafter Ocwen), the loan servicer. Delpesche averred, among other things, that, based on his review of Ocwen’s business records, the plaintiff had been in possession of the note since February 23, 2007, prior to the commencement of the action. However, the plaintiff failed to attach the business records upon which Delpesche relied upon in his affidavit. Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without submission of the business records, a witness’s testimony as to the contents of the records is inadmissible hearsay. Since the plaintiff failed to attach the business records upon which Delpesche relied in his affidavit, his assertions based upon those records constituted inadmissible hearsay. Moreover, the copy of the note attached to the complaint at the time the action was commenced lacked an endorsement. Consequently, the plaintiff failed to establish, prima facie, its standing to commence the action.
(Internal quotations and citations omitted).