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THE REFEREE’S REPORT RELIED ON HEARSAY AND SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not prove the amount due the plaintiff and therefore the referee’s report should not have been confirmed:

… [W]ith respect to the amount due to the plaintiff, the referee based his findings on an affidavit of Theresa Robertson, an employee of the plaintiff, who averred, based on her review of the plaintiff’s business records, that the defendant defaulted by failing to make the payment due on May 1, 2010, and “all subsequent payments.” However, as the defendant correctly contends, Robertson’s assertions in that regard constituted inadmissible hearsay … , since the records themselves were not provided to the referee … . Moreover, even if the records had been provided, ” [a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures'” … . Nothing in Robertson’s affidavit, in which she averred that the plaintiff received the original note on May 13, 2013, indicated that the plaintiff was the maker of the records relating to the defendant’s alleged initial default in May 2010 and her alleged failure to make payments for some period of time thereafter. Robertson also did not aver that the records provided by the maker were incorporated into the plaintiff’s records and routinely relied upon by the plaintiff in its own business … . Therefore, the plaintiff failed to lay a proper foundation for the business records on which Robertson relied with respect to the amount due to the plaintiff. Contrary to the plaintiff’s contention, under the circumstances presented, the Supreme Court’s error in relying on the hearsay evidence was not harmless … . Nationstar Mtge., LLC v Durane-Bolivard, 2019 NY Slip Op 06502, Second Dept 9-11-19

 

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