| Citibank, N.A. v Cabrera |
| 2015 NY Slip Op 06208 [130 AD3d 861] |
| July 22, 2015 |
| Appellate Division, Second Department |
[*1]
| Citibank, N.A., Appellant, v Heylin Cabrera,Defendant. |
Ackerman LLP, New York, N.Y. (Jordan M. Smith and Kathleen R. Fitzpatrick ofcounsel), for appellant.
In an action to recover damages for breach of contract and based on an accountstated, 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 thecomplaint 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 onthe complaint and dismissing the defendant's counterclaim. On its motion for summaryjudgment, the plaintiff had the burden of establishing, by proof in admissible form, itsprima facie entitlement to judgment as a matter of law (see CPLR 3212 [b];Zuckerman v City of New York, 49 NY2d 557, 561 [1980]). In support of itsmotion, 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. Theplaintiff's affiant averred that her knowledge of the relevant facts was based, inter alia, ona review of the plaintiff's records, including printouts of the defendant's payment historyregarding a certain home equity loan.
The plaintiff's submissions were insufficient to establish its prima facie entitlement tojudgment as a matter of law, as the plaintiff failed to demonstrate the admissibility of therecords relied upon by its affiant under the business records exception to the hearsay rule(see CPLR 4518 [a]; USBank N.A. v Madero, 125 AD3d 757, 758 [2015]; JP Morgan Chase Bank, N.A. vRADS Group, Inc., 88 AD3d 766, 767 [2011]). A proper foundation for theadmission of a business record must be provided by someone with personal knowledgeof the maker's business practices and procedures (see Palisades Collection, LLC v Kedik, 67 AD3d 1329[2009]; West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950[2002]). 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 keepingpractices and procedures and, thus, she did not lay a proper foundation for the admissionof the defendant's payment history (see JP Morgan Chase Bank, N.A. v RADSGroup, Inc., 88 AD3d at 767; Palisades Collection, LLC v Kedik, 67 AD3d 1329 [2009];West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950 [2002]).Moreover, the plaintiff's affiant did not assert that she had personal knowledge of thedefendant's payment history (see JP Morgan Chase Bank, N.A. v RADS Group,Inc., 88 AD3d at 767). Thus, the plaintiff failed to satisfy its prima facie burden(see US [*2]Bank N.A. v Madero, 125 AD3d at758).
The plaintiff's remaining contentions either need not be reached in light of ourdetermination, are without merit, or are not properly before this Court.
Accordingly, the Supreme Court properly denied the plaintiff's motion for summaryjudgment on the complaint and dismissing the defendant's counterclaim. Skelos, J.P.,Hall, Austin and Sgroi, JJ., concur.