(dissenting in part). I respectfully dissent in part. In my view, the affidavit that Bank of America (BOA) submitted in support of its motion was deficient and failed to comply with Administrative Order AO/431/11 of the Chief Administrative Judge of the Courts. Nonetheless, I agree with the majority that the motion court should have granted BOA summary judgment on its foreclosure claim, since this is the rare case where a foreclosure plaintiff was able to establish its prima facie case without reference to its own affidavit. Instead, BOA could rely solely on defendant’s answer, in which she admitted the amount she owed to BOA and waived any challenge to BOA’s standing (see Bank of N.Y. Mellon v Arthur, 125 AD3d 492, 493 [1st Dept 2015]; Security Pac. Natl. Bank v Evans, 31 AD3d 278, 281 [1st Dept 2006], appeal dismissed 8 NY3d 837 [2007]).
However, since the deficiencies in the affidavit submitted by BOA are substantial, I believe that we should follow the approach taken by our colleagues in the Second Department and hold that BOA was not entitled to an order of reference because the affidavit it submitted failed to establish that the affiant could affirm the facts necessary to satisfy BOA’s and its counsel’s obligations under Administrative Order AO/431/11 (Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1063, 1065 [2d Dept 2016]). This result is necessary to accomplish the purposes which that Administrative Order was intended to achieve.
In October 2010, Chief Judge Jonathan Lippman instituted a rule requiring plaintiffs in foreclosure actions to certify the accuracy of the documents they present to the court. This requirement, embodied in Administrative Order AO/548/10, later amended by Administrative Order AO/431/11, was intended to prevent the practice of “robo-signing” (A. Gail Pru-denti, 2014 Report of the Chief Administrator of the Courts at 5-6, available at https://www.nycourts.gov/publications/pdfs/ 2014-Foreclosure-Report-ofthe-CAJ.pdf [accessed Sept. 14, 2017]). “Robo-signing” refers to “the robotic affixation of signatures on key papers in the case by those with no firsthand knowledge of the information contained in the papers they’re signing” (252 Siegel’s Practice Review, Office of Court Administration’s Power to Promulgate Affirmation Rule is Tacitly Upheld by Appellate Division at 2 [Dec. 2012]).
Specifically, the Administrative Order requires counsel for a foreclosure plaintiff to file an affirmation confirming that he or she communicated with a representative of the plaintiff who personally reviewed the plaintiff’s books and records, personally reviewed the summons, complaint and other submissions in the case, and confirmed the factual accuracy of the plaintiff’s submissions as well as the accuracy of the notarization of those submissions (Admin Order of Chief Admin Judge of Cts AO/ 431/11 at form A, available at https://www.nycourts.gov/ attorneys/pdfs/AdminOrder_2010_10_20.pdf [accessed Aug. 28, 2017] [Administrative Order]; see also Izmirligil, 144 AD3d at 1065; Wells Fargo Bank, N.A. v Jones, 139 AD3d 520, 521 n 1 [1st Dept 2016]). The Administrative Order prescribes the required form of the attorney affirmation and a sample affidavit of merit that may be used by the representative of the plaintiff (Administrative Order at forms A & B). For cases pending at the time of the order’s effective date, where no judgment of foreclosure has been entered, this affirmation must be filed “at the time of filing either the proposed order of reference or the proposed judgment of foreclosure” (Izmirligil, 144 AD3d at 1065 [internal quotation marks omitted]).1
Our colleagues in the Second Department have refused to issue an order of reference and judgment of foreclosure and sale, when the plaintiff failed to submit the required affirmation (see Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1067, 1070 [2d Dept 2016]; Wells Fargo Bank, N.A. v Hudson, 98 AD3d 576, 577-578 [2d Dept 2012]), or submitted an affirmation which was not “in compliance” with the Administrative Order (see Downey Sav. & Loan Assn., F.A. v Trujillo, 142 AD3d 1040, 1042 [2d Dept 2016]), even where the application was otherwise sufficient.
I submit that this is an appropriate case to follow the Second Department. In this case, counsel relies on the affidavit of Matthew Mattera, a “Member” of BOA’s successor in interest, IFS. Mattera alleges, in each of his affidavits, as follows:
“I make this affidavit with personal knowledge of the facts and circumstances herein which are derived from personal knowledge and/or an independent examination of the financial books and business records made in the ordinary course of business maintained by or on behalf of Plaintiff to be an accurate and fair representation of the occurrences with which the record purports to represent as well as business records relative to the within litigation. I am familiar with the record keeping systems that Plaintiff and/or its loan servicer uses to record and create information related to the residential mortgage loans that it services, including the processes by which Plaintiff and/or its loan ser-vicer obtains the loan information in those systems. While many of those processes are automated, where the employees of the Plaintiff and/or its ser-vicer manually enter data relating to loans on those systems, they have personal knowledge of that information and enter it into the system at or near the time they acquired that knowledge. The records relied upon are made in the regular course of business made at or about the time the event is being recorded, systematically made for the conduct of business and are relied upon as the accurate routine reflections of the day-to-day regularly conducted business activity and so they may be relied upon as being truthful and accurate. In connection with making this affidavit, I have personally examined these business records.”
Mattera also alleges that he reviewed “[p]laintiffs books and records” and that “[a]ny allegation of either full or timely payment after default is simply not substantiated.” In addition, Mattera alleges that defendant breached “his/her obligations” to tender the August 1, 2007 payment and all successive payments. These statements do not comply with the Administrative Order (see Wells Fargo Bank, N.A. v Jones, 139 AD3d at 521 n l).2
In fact, Mr. Mattera’s affidavit differs in two critical respects from the proposed principal’s affidavit in the Administrative Order. First, that affidavit is written as if the affiant were a representative of the plaintiff. However, Mr. Mattera does not claim to have any relationship to plaintiff, BOA; rather, he claims to be a managing member of IFS, plaintiff’s assignee.
Second, the proposed affidavit in the Administrative Order assumes that the mortgage has not been transferred, as demonstrated by this alternative language: “Inasmuch as the underlying mortgage loan has been transferred prior to commencement or during the pendency of this action, I am unable to confirm or deny that the underlying documents filed with the Court have been properly reviewed or notarized by the prior servicer” (Administrative Order at form B). In contrast, although Mr. Mattera acknowledges that the mortgage has been transferred, he does not explain his source of knowledge about the records maintained by plaintiff and its predecessor, GE Money Bank (GE), which was the original lender and mortgagee, and remained the mortgagee until after the date of defendant’s default. Mr. Mattera does not claim to have reviewed the records of GE or to be familiar with GE’s record-keeping practices. Instead, Mr. Mattera’s affidavits only refer to his alleged review of the records of “plaintiff,” i.e., BOA. Indeed, while the majority highlights that “in seeking to enforce a loan, an assignee of an original lender or intermediary predecessor may use an original loan file prepared by its assignor,” there is no indication in the record that Mr. Mattera reviewed GE’s original loan file (see Jones, 139 AD3d at 521-522).
Mattera has also failed to allege facts sufficient to establish a business records foundation under CPLR 4518 (a) for the records of BOA, and its loan servicer, Litton, which he claims to have reviewed. Mattera is a member of IFS, which was assigned the mortgage on November 2, 2009. Mattera has not explained how he acquired personal knowledge of the record-keeping practices of BOA, or its loan servicer (see Jones at 521-522). Furthermore, Mattera does not provide the court with any assurances that the unidentified employees to whom he refers actually followed the practices he describes. Accordingly, Mattera’s affidavits are bereft of the “ ‘indicia of reliability’ ” necessary for a representative of one entity to lay a business records foundation for the records of another entity (see Jones, 139 AD3d at 521, quoting One Step Up, Ltd. v Webster Bus. Credit Corp., 87 AD3d 1, 11 [1st Dept 2011]; see also People v Cratsley, 86 NY2d 81, 90 [1995]).3 Since Mattera cannot lay a business records foundation for the records of BOA or Litton that he claims to have reviewed, this Court “cannot rely on any statements in the [Mattera affidavits] concerning events before the date of [IFS’s] acquisition of the mortgage” (Jones, 139 AD3d at 522).
Indeed, Mr. Mattera’s lack of knowledge of events before 2009 is underscored by the discrepancy between his statement in the first of his three affidavits that BSI Financial was the loan servicer from the inception of the loan, and the 2007 notice of default in which Litton Loan Servicing claims to be the loan servicer.
The majority cites a number of cases in an effort to suggest that Mattera can lay a business records foundation for the records predating IFS’s acquisition of the mortgage. However, in the majority’s cases, the witness was able to provide the court with the necessary “indicia of reliability” that Mattera’s affidavits lack (id. at 521 [internal quotation marks omitted]).
In each of Citibank, NA v Abrams (144 AD3d 1212, 1216 [3d Dept 2016]) and Deutsche Bank Natl. Trust Co. v Naughton (137 AD3d 1199, 1200 [2d Dept 2016]), the foreclosure plaintiff’s agent was found to have sufficient knowledge of the plaintiff’s record-keeping procedure to provide the “indicia of reliability” necessary to lay a proper business records foundation. Here, Mattera is a member of IFS which is merely BOA’s successor in interest; he has not claimed that IFS has any agency relationship with GE, BOA, or BOA’s agent, Litton.
In State of New York v 158th St. & Riverside Dr. Hous. Co., Inc. (100 AD3d 1293, 1296 [3d Dept 2012], lv denied 20 NY3d 858 [2013]), a representative of the Department of Environmental Conservation (DEC) laid a proper business records foundation for the records of an outside contractor when, inter alia, the records were generated at the DEC’S direction and the DEC was the records’ primary custodian. Mattera’s affidavits lack any comparable factual details or indicia of reliability.
In Landmark Capital Invs., Inc. v Li-Shan Wang (94 AD3d 418, 419 [1st Dept 2012]), the foreclosure plaintiff relied upon an original loan file prepared by its assignor, a record that the plaintiff “relied on . . .in its regular course of its business.” In this case, Mattera does not allege that IFS has incorporated BOA’s records into its own records, or that IFS relies upon the records of BOA in the regular course of its own business or that he relied on or reviewed GE’s records.4
Accordingly, because Mattera’s affidavits do not establish a complete review of, or the indicia of reliability necessary to lay a business records foundation for, the records predating IFS’s acquisition of defendant’s mortgage, counsel may not rely upon alleged communications with Mattera to comply with the requirements of the Administrative Order.
Moreover, the accuracy of BOA’s records remains relevant to the computations that a referee will have to undertake in this case. Denying an order of reference at this juncture, in order to ensure the accuracy of the records upon which those computations will be based, is our obligation under the Administrative Order.
For all these reasons, I would follow the procedure prescribed by our colleagues in the Second Department and deny BOA’s application for an order of reference (Izmirligil, 144 AD3d at 1070; Trujillo, 142 AD3d at 1042; Hudson, 98 AD3d at 577-578).
Acosta, P.J., Richter and Kahn, JJ., concur with Andrias, J.; Gesmer, J., dissents in part in a separate opinion.Order, Supreme Court, Bronx County, entered March 17, 2015, reversed, on the law, without costs, plaintiffs motion for summary judgment and an order of reference granted, and the matter remanded for appointment of a referee, to compute and ascertain the amount due plaintiff on the subject mortgage. Appeals from orders, same court and Justice, entered September 18, 2014, and December 24, 2014, dismissed, without costs, as academic.
. On August 30, 2013, CPLR 3012-b, which requires that a certificate of merit be filed with the complaint in a mortgage foreclosure action, became effective. On that date, the Chief Administrative Judge of the Courts issued Administrative Order AO/208/13, which directs, as relevant here, that counsel representing a plaintiff in a mortgage foreclosure action commenced prior to August 30, 2013, may comply with either Administrative Order AO/431/11 or CPLR 3012-b.
. The majority notes that defendant did not challenge the sufficiency of Mattera’s affidavit in opposition to BOA’s third summary judgment motion. However, defendant did raise such a challenge in opposition to BOA’s first summary judgment motion. Defendant was a pro se litigant who could not be expected to know that she should have repeated her argument in opposition to each of BOA’s successive summary judgment motions. Furthermore, “multiple summary judgment motions in the same action should be discouraged in the absence of newly discovered evidence or sufficient cause” (Public Serv. Mut. Ins. Co. v Windsor Place Corp., 238 AD2d 142, 143 [1st Dept 1997]). Since BOA submitted what was substantively the same summary judgment motion three times over, defendant raised her argument in opposition to the only one of BOA’s motions that was properly submitted.
. Mattera also cannot rely on the Bailey and Dixon affidavits for any of this information, both because BOA has conceded their impropriety, and because documents prepared in connection with litigation do not qualify for the business records exception to the rule against hearsay (Jones, 139 AD3d at 522).
. JP Morgan Chase Bank, N.A. v Shapiro (104 AD3d 411 [1st Dept 2013]), also cited by the majority, does not address the issue of whether Mat-tera can lay a business records foundation for the records of BOA, because that case involved an affidavit by an employee of a foreclosure plaintiff, which stated that she reviewed the foreclosure plaintiff’s books and records. The majority’s reliance on Citigroup v Kopelowitz (147 AD3d 1014 [2d Dept 2017]) is similarly misplaced, since that case involved an affidavit from an employee of the plaintiff’s loan servicer, who attested to reviewing records kept in the regular course of the loan servicer’s business.