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THE REFEREE’S REPORT, WHICH IS MERELY ADVISORY AND IS NOT BINDING ON THE COURT, SHOULD NOT HAVE BEEN ACCEPTED BY THE COURT BECAUSE IT WAS BASED UPON BUSINESS RECORDS THAT WERE NOT PROVIDED TO THE REFEREE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been accepted because it was based upon business records which were not in evidence:

… Supreme Court should have granted that branch of the defendant’s cross motion which was to reject the referee’s report. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . “The referee’s findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute” … .

Here, in addition to the outstanding principal amount of the loan, along with accrued interest and charges, the referee included $507,095.35 in “Tax Disbursements” and $27,705.00 in “Hazard Insurance Disbursements” as part of the total amount due to the plaintiff. The defendant correctly objected to the inclusion of these disbursements on the ground that they were calculated based on business records that were never produced by the plaintiff or submitted to the referee (see CPLR 4518[a] …). HSBC Bank USA, N.A. v Cherestal, 2019 NY Slip Op 08660, Second Dept 12-4-19

 

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