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Not necessarily inconsistentMarch 30, 2018

Nationstar Mtge. LLC v Accardo, 2018 NY Slip Op 02276 (1st Dept. 2018)

Oh let us say you put the wrong denial date in your motion but correctly set forth the mailing procedure – placed in the bin, postaged, sent out that day or the next day and the affiant has personal knowledge of the mailing procedure.  Bonus points if you say the affiant checked the accuracy of the addresses and (s)he ensured compliance with the procedures and did comply.

Now, you get called out because you made a typographical error.  You fix the affidavit in Reply or make a new motion and someone accuses you of making inconsistent statements.  Now what?

“In opposition, defendant failed to raise an issue of fact. Contrary to his contention, plaintiff’s affidavit and attached documents are not hearsay; the affiant said that he personally reviewed loan records kept in the ordinary course of business and that he was personally familiar with plaintiff’s record-keeping practices (see Bank of Am., N.A. v Brannon, 156 AD3d 1, 8 [1st Dept 2017]). Inconsistent statements in a prior affidavit submitted by plaintiff do not suffice, because they are contradicted by documentary evidence (see Bank of N.Y. v 125-127 Allen St. Assoc., 59 AD3d 220 [1st Dept 2009])”

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