New York Appellate Division, Second Dept.
Foreclosure/Standing/Note/Business Records Exception:  Mortgagee foreclosed and mortgagor countered with a standing argument.  Supreme Court granted summary judgment for Mortgagor, denied defendant’s motion to dismiss, and entered a judgment of foreclosure.  On appeal, the Second Department reversed…“Where, as here, the note has been endorsed in blank, the purported holder of the note must establish its standing by demonstrating that the original note was physically delivered to it prior to the commencement of the action (see UCC 3-202[1]; 3-204[2]; US Bank, N.A. v Zwisler, 147 AD3d 804, 806; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d at 685).”   The Court stated that although a bank officer provided an affidavit of possession with exhibits, the attestation was insufficient to meet the business records exception to the hearsay rule because the officer “did not attest that he was personally familiar with the plaintiff's record-keeping practices and procedures (see OneWest Bank, FSB v Berino, 158 AD3d 811, 813; US Bank N.A. v Ballin, 158 AD3d 786, 788; U.S. Bank N.A. v Brody, 156 AD3d 839, 841; HSBC Mtge. Servs., Inc. v Royal, 142 AD3d 952, 954).” Bank of N.Y. Mellon v Selig, 2018 NY Slip Op 06874, Appellate Division, Second Department, October 17, 2018.
opinion

New York Appellate Division, Second Dept.
Village Compensation in Condemnation “Substantially Undervalued”/Litigation Fees Awarded:  Village condemned property and offered $2,596,150 as compensation.  A bench trial found for the condemnee and awarded $6,500,000.  Thereafter, condemnee sought payment of litigation expenses under EDPL 701 and the court allowed $1,190,582.91.  On appeal, the Second Department sustained stating that the difference between the offer vs. the award satisfied the “substantially undervalued” criteria… “Here, the condemnation award was substantially in excess of the amount of the evidence submitted by the Village. Further, the Supreme Court providently exercised its discretion in determining that an additional allowance, including for ‘reasonable attorney, appraiser and engineer fees actually incurred,’ was necessary for the claimant to receive just and adequate compensation (EDPL 701; see generally Hakes v State of New York, 81 NY2d at 398).  Matter of Haverstraw (AAA Electricians, Inc.), 2018 NY Slip Op 06921, Appellate Division, Second Department, October 17, 2018
opinion