Berkshire Bank v. Fawer

2020 NY Slip Op 05806, 130 N.Y.S.3d 666, 187 A.D.3d 535

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 2020
• Docket: Index No. 850250/17 Appeal No. 12070 Case No. 2019-03270
• Status: Published

Opinion

Berkshire Bank v Fawer (2020 NY Slip Op 05806)

Berkshire Bank v Fawer

2020 NY Slip Op 05806

Decided on October 15, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 15, 2020
Before: Renwick, J.P., Gesmer, González, Scarpulla, JJ.

Index No. 850250/17 Appeal No. 12070 Case No. 2019-03270

[*1]Berkshire Bank, Successor by Merger to First Choice Bank, Plaintiff-Respondent,

v

Melissa Fawer, et al., Defendants-Appellants, Santander Bank, N.A., et al., Defendants.

The SAGE Law Firm Group PLLC, Buffalo (Kathryn Friedman of counsel), for appellants.

Harris Beach PLLC, New York (Ross B. Hofherr of counsel), for respondent.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered July 23, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff bank's motion for summary judgment on its claim against defendants borrowers Melissa Fawer and Mark Fawer and striking their answer and dismissing their affirmative defenses, unanimously affirmed, with costs.

Plaintiff established its standing by attaching the endorsed note to the complaint (Bank of N.Y. Mellon v Knowles, 151 AD3d 596 [1st Dept 2017]). With regard to the facts of the default, defendants are correct that counsel's affirmation had no probative value (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Similarly, the affidavit of plaintiff's vice president lacked any foundation for the affiant's knowledge of the business records of plaintiff or its predecessor in interest (see Bank of Am., N.A. v Brannon, 156 AD3d 1, 8 [1st Dept 2017]). Here, however, the forbearance agreement submitted by plaintiff contained an admission of liability by defendants. This agreement established plaintiff's prima facie entitlement to judgment, and defendants did not come forward with evidence to raise a triable issue of fact.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 15, 2020