171 A.D.3d 197
N.Y. App. Div.2019Background
- Plaintiff Bank of New York Mellon sued to foreclose a mortgage against defendant Dushaun Gordon; Gordon answered with 55 affirmative defenses, 5 counterclaims, and 2 cross‑claims against MERS.
- Plaintiff moved for summary judgment on the complaint against Gordon, to dismiss his affirmative defenses and counterclaims, and to appoint a referee to compute amounts due; Gordon cross‑moved to dismiss or, alternatively, to compel disclosure and sought leave to enter default judgment on his cross‑claims against MERS.
- Supreme Court granted plaintiff summary judgment on the complaint as to Gordon, dismissed many of Gordon’s affirmative defenses and counterclaims, and appointed a referee; it (in effect) denied Gordon’s cross‑motions. Gordon appealed.
- On appeal the Second Department reviewed standing, admissibility of business records under CPLR 4518, and whether plaintiff proved default via admissible evidence; it found errors in the foundation for the payment/default evidence but affirmed standing.
- Court modified the order: it reversed the grant of summary judgment as to Gordon’s default (denying those branches), reinstated Gordon’s 20th affirmative defense, and remitted for redetermination of Gordon’s CPLR 3124 disclosure request.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | Plaintiff was in possession of the original note endorsed in blank before suit; that proves standing | Gordon argued triable issues existed as to whether plaintiff had standing | Held for plaintiff: affidavit and custody of endorsed note established prima facie standing; Gordon raised no triable issue |
| Admissibility of attorney firm business records (possession/receipt of note) | Affidavit from attorney’s employee authenticated firm computer entry and a copy of original note as business records under CPLR 4518 | Gordon contested foundation and claimed lack of personal knowledge of record-keeping | Held for plaintiff: custodian (Schwartz) had sufficient foundation for records she maintained; records admissible as business records of plaintiff’s counsel |
| Proof of borrower default / payment history | Plaintiff relied on servicer/business records and affidavit of Bayview document coordinator to show missed payments | Gordon argued plaintiff failed to lay proper foundation for payment records and that Carroll’s affidavit was hearsay/contradicted attached docs | Held for defendant on this issue: plaintiff failed to establish default in admissible form (foundational defects and contradictions); summary judgment on liability reversed as to default and related relief |
| Entry of default on defendant’s cross‑claims against MERS | Plaintiff asked denial of Gordon’s request; Gordon sought leave to enter default against MERS | Gordon claimed proof of service had been submitted | Held for plaintiff: Gordon failed to provide proof of service on MERS; leave to enter default denied |
Key Cases Cited
- Alvarez v. Prospect Hosp., 68 NY2d 320 (establishes summary judgment burden shifting standard)
- Zuckerman v. City of New York, 49 NY2d 557 (summary judgment requires admissible evidence)
- Viviane Etienne Med. Care, P.C. v. Country‑Wide Ins. Co., 25 NY3d 498 (moving party must submit proof in admissible form)
- Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355 (standing in foreclosure established by holder/assignee of note)
- U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752 (mortgage passes with debt; assignment/delivery of note transfers standing)
- Matter of Leon RR, 48 NY2d 117 (business‑records admissibility requires informant with personal knowledge and reporting duty)