Upon the following papers on this unopposed motion for an order of reference: proposed [*2]order of reference, affirmation of plaintiff's counsel Erin O'Brien, Esq., dated June 27, 2016, with supporting exhibits A-J; affirmation in opposition of defendant's counsel Charles W. Marino, Esq. dated July 19, 2016, with supporting exhibits A-B; affirmation in reply of plaintiff's counsel Karen Wilson-Robinson, Esq. dated July 26, 2016, with supporting exhibits A-B; and upon due consideration and deliberation, it is

ORDERED that this motion by the plaintiff for, inter alia, an order fixing the defaults of the non-answering defendants, appointing a referee and amending the caption is denied without prejudice to renew within 120 days of the date herein; and it is further

ORDERED that the plaintiff shall serve a copy of this order with notice of entry upon all parties which have appeared herein and not waived further notice within thirty (30) days of the date herein, and shall promptly file the affidavits of service with the Clerk of the Court.

This is a residential mortgage foreclosure action, concerning, inter alia, a mortgage and note, given by the defendant Cindy Albertini ("the defendant mortgagor") on January 11, 2006, as modified by agreement executed on May 24, 2010, on certain real property situate in Suffolk County, New York.

The defendant mortgagor allegedly defaulted on the note and mortgage by failing to make the monthly payment of principal and interest due on or about May 1, 2012, and each month thereafter. After the defendant mortgagor allegedly failed to cure the aforesaid default in payment, the plaintiff commenced the instant action by the filing of the lis pendens, summons and complaint on December 5, 2014. The defendant mortgagor filed a limited notice of appearance in this action, but never answered. The remaining defendants never answered and are also in default.

The plaintiff now moves for, inter alia, an order of reference pursuant to RPAPL 1321. In response, the defendant mortgagor has filed the affirmation of counsel in opposition to the motion.

It is well established that to be entitled to a default judgment, the movant must establish the existence of facts which constitute cognizable claims for the relief demanded against the defaulting defendants (see, CPLR 3215 [f]; Resnick v Lebovitz, 28 AD3d 533, 813 NYS2d 480 [2d Dept 2006]; Silberstein v Presbyterian Hosp. in City of New York, 96 AD2d 1096, 463 NYS2d 254 [2d Dept 1983]). While a default admits all factual allegations of the complaint and all reasonable inferences therefrom, it does not admit legal conclusions which are reserved for the court's determination (see, Silberstein v Presbyterian Hosp. in City of New York, 96 AD2d 1096, supra). While the proof required on an application for a default judgment is not as exacting as that required for a successful summary judgment motion, confirmation of the facts constituting the plaintiff's claims against the defaulting defendants must be set forth in a verified pleading or an affidavit by plaintiff or other person possessed of personal knowledge (see, Woodson v Mendon Leasing Corp., 100 NY2d 62, 760 NYS2d 727 [2003]; Cohen v Schupler, 51 AD3d 706, 856 NYS2d 870 [2d Dept 2008]).

This motion is denied with leave to renew upon presentation of an affidavit submitted either by an officer of the plaintiff, or of a person acting with a valid power of attorney from the plaintiff, with personal knowledge of the relevant facts constituting the claim, the default, and the amount due (see, Matone v Sycamore Realty Corp., 31 AD3d 721, 818 NYS2d 463 [2d Dept 2006]). The motion is also denied because the plaintiff failed to demonstrate its prima facie case [*3]as to the alleged default in payment because the affidavit in support of the motion is partially supported by inadmissible hearsay (see, CPLR 4518 [a]; Citibank, N.A. v Cabrera, 130 AD3d 861, 14 NYS3d 420 [2d Dept 2015]; US Bank N.A. v Madero, 125 AD3d 757, 5 NYS3d 105 [2d Dept 2015]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 890 NYS2d 230 [2d Dept 2009]; see also, Cadle Co. v Gregory, 293 AD2d 335, 739 NYS2d 825 [1st Dept 2002]). More specifically, the plaintiff's representative, Gabriel De Souza, a Vice President from Ocwen Loan Servicing, LLC ("Ocwen"") did not allege that he is familiar with the plaintiff's and/or the lender's and/or the prior servicer's record keeping practices and procedures as to the payment history since the time of the default (see, JP Morgan Chase Bank, N.A. v RADS Group, Inc., 88 AD3d 766, 930 NYS2d 899 [2d Dept 2011]). Nor did he allege that the plaintiff's and/or the lender's and/or prior servicer's records were incorporated into Ocwen's records and relied upon in the regular course of its business (see, Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737, 15 NYS3d 863 [3d Dept 2015]; Pennymac, Corp. v DiPrima, 2016 NY Misc LEXIS 4328, 2016 NY Slip Op 26386 [Sup Ct, Suffolk County 2016]).

To the extent that the statements made by the affiant are based documents that were in the possession of the lender or another servicer prior to the alleged transfer of the note and the mortgage to the plaintiff, these records constituted hearsay (see generally, People v Goldstein, 6 NY3d 119, 810 NYS2d 100 [2005]). The mere filing of papers received from other entities, "even if they are retained in the regular course of business, is insufficient to qualify the documents as business records, because such papers simply are not made in the regular course of the recipient, who is in no position to provide the necessary foundation testimony" (Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495, 834 NYS2d 239 [2d Dept 2007] [internal quotation marks omitted]). Because the plaintiff's representative failed to lay a proper foundation for the admission of the records relating to the payment history preceding Ocwen's retention as servicer, under the business records exception to the hearsay rule (see, CPLR 4518 [a]), those of his assertions that were based on these records are inadmissible (see, US Bank N.A. v Madero, 125 AD3d 757, supra). Moreover, the plaintiff's affiant did not allege that he has personal knowledge of the defendant mortgagor's payment history. Therefore, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see, US Bank N.A. v Madero, 125 AD3d 757, supra).

Accordingly, the instant application is denied without prejudice as set forth above. In view of the foregoing, the proposed order submitted by the plaintiff has been marked "not signed."