HSBC BANK USA NATIONAL ASSOCIATION v. VASISHTA (2025)

DECISION & ORDER

In an action to recover damages for breach of a loan agreement and to recover on a personal guaranty, the defendants appeal from (1) an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated March 16, 2021, and (2) a judgment of the same court, dated December 21, 2021.  The order granted the plaintiff's motion for summary judgment on the complaint.  The judgment, upon the order, is in favor of the plaintiff and against the defendants in the total sum of $51,291.55.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is reversed, on the law, the plaintiff's motion for summary judgment on the complaint is denied, and the order is modified accordingly;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

In July 2012, the plaintiff commenced this action against the defendants, Jeffrey V. Vasishta and VSV Properties, LLC, to recover the balance allegedly owed pursuant to a business loan agreement and a personal guaranty, executed by Vasishta in November 2007.  In November 2019, the plaintiff moved for summary judgment on the complaint.  The defendants opposed the motion.  In an order dated March 16, 2021, the Supreme Court granted the plaintiff's motion.  On December 21, 2021, a judgment was entered, upon the order, in favor of the plaintiff and against the defendants in the total sum of $51,291.55.  The defendants appeal from the order and the judgment.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1];  Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).

“ ‘[A] motion for summary judgment will not be granted if it depends on proof that would be inadmissible at the trial under some exclusionary rule of evidence’ ” (Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d 45, 52, 984 N.Y.S.2d 401, quoting David D. Siegel, Prac Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:18 at 27 [2005 ed];  see Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 202, 97 N.Y.S.3d 286).  “ ‘Records made in the regular course of business are hearsay when offered for the truth of their contents’ ” (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 204, 97 N.Y.S.3d 286, quoting Jerome Prince, Richardson on Evidence § 8–301 [Farrell 11th ed 1995]).  “When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facie case, ‘[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures’ ” (Federal Natl. Mtge. Assn. v. Marlin, 168 A.D.3d 679, 681, 91 N.Y.S.3d 262, quoting Citibank, N.A. v. Cabrera, 130 A.D.3d 861, 861, 14 N.Y.S.3d 420;  see CPLR 3408[a]).

In support of its motion for summary judgment on the complaint, the plaintiff submitted an affidavit of Denine Chevillot Knowles, its vice president.  Though Knowles attested that she had “personal knowledge of the relevant business practices of Plaintiff,” she did not attest that the records submitted in support of the motion were “made in the regular course of business” and were “needed and relied on in the performance of functions of the business,” that it was “the regular course of such business to make the record[s],” or that the records were “made at or about the time of the event being recorded” (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 205, 97 N.Y.S.3d 286 [internal quotation marks omitted]).  Thus, Knowles failed to lay a proper foundation for the admission of any records concerning the defendants' payment history and default (see Bank of N.Y. Mellon v. Demasco, 226 A.D.3d 855, 858, 209 N.Y.S.3d 495;  U.S. Bank N.A. v. Kochhar, 176 A.D.3d 1010, 1012, 110 N.Y.S.3d 726).  Accordingly, the plaintiff failed to demonstrate that the records relied upon in the affidavit were admissible under the business records exception to the hearsay rule.

Inasmuch as the plaintiff's motion for summary judgment on the complaint was based on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law and its motion should have been denied regardless of the sufficiency of the defendants' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

BARROS, J.P., IANNACCI, WAN and GOLIA, JJ., concur.