| JP Morgan Chase Bank, N.A. v RADS Group, Inc. |
| 2011 NY Slip Op 07202 [88 AD3d 766] |
| October 11, 2011 |
| Appellate Division, Second Department |
| JP Morgan Chase Bank, N.A., Respondent, v RADSGroup, Inc., et al., Appellants. |
—[*1] Buonamici & LaRaus, LLP, White Plains, N.Y. (A. Albert Buonamici of counsel), forrespondent.
In an action to recover on a promissory note and a personal guarantee, the defendants appealfrom an order of the Supreme Court, Westchester County (Smith, J.), entered June 16, 2010,which granted the plaintiff's motion for summary judgment on the complaint.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the complaint is denied.
"To make a prima facie showing of entitlement to judgment as a matter of law in an action torecover on a note, and on a guaranty thereof, a plaintiff must establish 'the existence of a note andguaranty and the defendants' failure to make payments according to their terms' " (JPMorgan Chase Bank, N.A. v Galt Group,Inc., 84 AD3d 1028, 1029 [2011], quoting Verela v Citrus Lake Dev., Inc., 53 AD3d 574, 575 [2008]; see Nissan Motor Acceptance Corp. vScialpi, 83 AD3d 1020 [2011]; Gullery v Imburgio, 74 AD3d 1022 [2010]).
In support of its motion for summary judgment on the complaint, the plaintiff submitted,inter alia, a copy of the subject promissory note and guaranty. In addition, the plaintiff submittedan affidavit from one of its corporate officers who averred that her knowledge of the relevantfacts was based upon a review of the plaintiff's records. Specifically, the affiant asserted thatbased upon her review of the plaintiff's records, the defendants had failed to meet theirobligations under both the note and the guaranty. The plaintiff also submitted a printout of thedefendants' payment history on the note, which purported to show that the defendants haddefaulted on the note and the guaranty.
As the defendants correctly argued before the Supreme Court, the plaintiff failed to establishits prima facie entitlement to judgment as a matter of law. On its motion for summary judgment,the plaintiff had the burden of establishing, by proof in admissible form, its prima facieentitlement to judgment as a matter of law (see CPLR 3212 [b]; Zuckerman v City ofNew York, 49 NY2d 557 [1980]). However, the plaintiff failed to demonstrate theadmissibility of its printout of the defendants' payment history on the note under the businessrecords exception to the hearsay rule (see [*2]CPLR 4518[a]; Art of Healing Medicine, P.C. vTravelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Whitfield v City of New York, 48AD3d 798 [2008]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997];Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [2006]). Theplaintiff's affiant did not allege that she was familiar with the plaintiff's record keeping practicesand procedures and, thus, she did not lay a proper foundation for the admission of that paymenthistory (see Palisades Collection, LLC vKedik, 67 AD3d 1329 [2009]). Moreover, the plaintiff's affiant did not assert that shehad personal knowledge of the defendants' payment history. Since the plaintiff failed to meet itsprima facie burden, this Court need not consider the sufficiency of the defendants' opposingpapers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summaryjudgment on the complaint.
In light of our determination, we need not consider the defendants' remaining contentions.Angiolillo, J.P., Dickerson, Chambers and Lott, JJ., concur.