Jpmorgan Chase Bank, N.A. v. Clancy

• Decision Date: 08 May 2014
• Citation: 985 N.Y.S.2d 507,2014 N.Y. Slip Op. 03331,117 A.D.3d 472
• Parties: JPMORGAN CHASE BANK, N.A., Plaintiff–Respondent, v. Dermott W. CLANCY, etc., et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 472

985 N.Y.S.2d 507

2014 N.Y. Slip Op. 03331

JPMORGAN CHASE BANK, N.A., Plaintiff–Respondent,

v.Dermott W. CLANCY, etc., et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

May 8, 2014.

Law Office of Michael G. Dowd, New York (Niall MacGiollabhui of counsel), for appellants.

Helfand & Helfand, New York (Michael A. D'Emidio of counsel), for respondent.

TOM, J.P., ACOSTA, ANDRIAS, DeGRASSE, RICHTER, JJ.

Order, Supreme Court, New York County (Paul Wooten, J.), entered November 8, 2012, which granted plaintiff's motion for summary judgment, unanimously reversed, on the law, with costs, and the motion denied.

Plaintiff's motion was based on two sets of exhibits, one attached to plaintiff's complaint, and the other to an affidavit of plaintiff's employee. The exhibits would be in admissible form only if plaintiff satisfied the requirements for their admission as business records under CPLR 4518(a). Plaintiff failed to satisfy those requirements. Although a verified pleading may be used anytime an affidavit is called for ( seeCPLR 105[u] ), here the complaint was verified only by counsel, rather than a person with knowledge. Thus, it was insufficient to establish that the attached documents were admissible under the business records exception to the hearsay rule ( see A.B. Med. Servs. PLLC v. Travelers Prop. Cas. Corp., 5 Misc.3d 214, 215, 783 N.Y.S.2d 244 [Civ.Ct., Kings County 2004] [attorney's affirmation was insufficient to establish that a report was an admissible business record] ). The exhibits to the employee's affidavit were also inadmissible, because the affiant failed to state in words or substance that it was the regular business of the plaintiff to create such records ( see People v. Kennedy, 68 N.Y.2d 569, 579, 510 N.Y.S.2d 853, 503 N.E.2d 501 [1986] ). Furthermore, the critical document relied upon by plaintiff to establish nonpayment is not self-explanatory and does not contain the date referenced in the employee's affidavit.