U.S. Bank N.A. v. Chait

U.S. Bank N.A. v Chait (2021 NY Slip Op 05182)

U.S. Bank N.A. v Chait

2021 NY Slip Op 05182

Decided on September 30, 2021

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: September 30, 2021
Before: Manzanet-Daniels, J.P., Kern, Oing, Rodriguez, Higgitt, JJ.

Index No. 850037/15 Appeal No. 14254 Case No. 2021-00919

[*1]U.S. Bank National Association as Trustee for CMALT REMIC 2007-A4 PRAA-REMIC Pass-Through Certificates, Series 2007 A4, Plaintiff-Respondent,

v

Mindy N. Chait, Also Known as Mindy Chait, Defendant-Appellant, Joshua Kirschenbaum et al., Defendants.

Richland & Falkowski, PLLC, Astoria (Michal Falkowski of counsel), for appellant.

David A. Gallo & Associates LLP, Manhasset (Robert Link of counsel), for respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered September 2, 2020, which granted plaintiff's motion to confirm the Referee report and for a judgment of sale and foreclosure, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded to Supreme Court for a new report computing the amount due plaintiff.

In his report of amount due upon the subject note and mortgage, the Referee relied on an April 13, 2018 affidavit by a vice president of plaintiff's loan servicer that, according to plaintiff's books and records pertaining to defendant's loan and payment history, defendant had been in default since August 1, 2011, and owed plaintiff the stated amount. However, because the books and records themselves were not submitted, the affidavit is inadmissible hearsay (Deutsche Bank Natl. Trust Co. v Kirschenbaum, 187 AD3d 569 [1st Dept 2020]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 30, 2021