Decided on September 14, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P. 
SHERI S. ROMAN 
JEFFREY A. COHEN 
FRANCESCA E. CONNOLLY, JJ.
2015-07269 
2015-07270 
(Index No. 9866/10) 

DECISION & ORDER

ORDERED that the appeal from the order dated December 17, 2014, is dismissed, as the portion of the order appealed from was superseded by the order dated January 5, 2015; and it is further,

ORDERED that the order dated January 5, 2015, is reversed, on the law, the plaintiff’s motion for summary judgment on the complaint, to strike the answer of the defendant Phillippa Royal, to amend the caption, and to appoint a referee to compute the amount due to the plaintiff is denied, and so much of the order dated December 17, 2014, as granted the plaintiff’s motion, inter alia, for summary judgment is vacated; and it is further,

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

. . .

The plaintiff failed to demonstrate the admissibility of the records relied upon by Roesner under the business records exception to the hearsay rule (see CPLR 4518[a]), and, thus, failed to establish the appellant’s default in payment under the note. “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”

. . .

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, since the plaintiff failed to meet its prima facie burden, its motion should have been denied, regardless of the sufficiency of the appellant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

BALKIN, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court