Tuesday, September 16, 2014

Hearsay evidence in opposing summary judgment.

Practice point: Plaintiff brought this action against her former father-in-law to enforce his guaranty of a settlement agreement in a matrimonial proceeding. The agreement provided, in pertinent part,that plaintiff, who remained an obligor on a mortgage and a line of credit agreement along with her nonparty former husband, had the right to notify the husband or defendant of any uncured default in the monthly payments and demand that the default be cured.

Plaintiff's primary claim is that the husband's repeated late payments on the mortgage and the line of credit had damaged her credit and resulted in receipt of a bank notice indicating that the former marital residence was at risk of foreclosure.

Pertaining to the line of credit account, defendant avers, and the husband states in a letter, that the bank representative informed them that the line of credit payments were current, and advising of the next scheduled payment. Defendant contends that the bank representative's statement was the best and only information he could obtain, as he was not a signatory on the accounts at issue and not allowed to obtain copies of the statements.

The Appellate Division found the argument unavailing, as defendant's affidavit relies only on hearsay evidence that a bank representative had indicated that the line of credit was in good standing. The documentary evidence is to the contrary.

Student note:  A party opposing summary judgment may proffer hearsay evidence, but such proof may not be the sole factual basis for denying summary judgment.

Case: Andron v. Libby, NY Slip Op 06155 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The enforceability of an on-the-record stipulation.