You are here: / / SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT ABSENT...
,

SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT ABSENT A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the referee’s report should not have been confirmed in the absence of a hearing on notice to the property owner, TEP:

… [T]he Supreme Court should not have confirmed the referee’s report in the absence of a hearing on notice to TEP (see CPLR 4313 …). Although the notice accompanying the plaintiff’s proposed referee’s oath notified TEP of the due date for the submission of documents to the referee, it did not indicate that the submission of such papers would be in lieu of a hearing … . Further, the Supreme Court erred in rejecting TEP’s contention, raised in opposition to the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale, that ” [t]he referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records'” … . Moreover, the referee’s report also failed to identify any documents or other sources upon which the referee based her finding that the mortgaged premises should be sold in one parcel … . HSBC Bank USA, N.A. v Tigani, 2020 NY Slip Op 03901, Second Dept 7-15-20

 

You might also like
IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES.
ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS.
A MOTION TO VACATE AN ORDER SHOULD BE TRANSFERRED TO THE JUDGE WHO MADE THE ORDER; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT).
Statements in Hospital Records Attributable to Plaintiff Not Admissible Because Not Germane to Treatment or Diagnosis/Plaintiff’s Counsel Should Not Have Been Allowed to Comment on Defense’s Failure to Call the Nurse Who Was Going to Testify About the Statements—New Trial Ordered
Fight On School Bus Was Not Foreseeable and Could Not Have Been Prevented
Material Misrepresentation Rendered Insurance Policy Void Ab Initio
Where the Complaint Alleged Only that the Driveway Was Defective and the Complaint Against the Company Which Renovated the Driveway Was Dismissed, the Complaint Against the Property Owners Should Have Been Dismissed As Well–There Was No Viable Theory for Liability on the Part of the Property Owners
THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN SET ASIDE IN THE INTEREST OF JUSTICE; THE JUDGE PRECLUDED CROSS-EXAMINATION OF PLAINTIFF’S EXPERT ABOUT WHETHER THE OTHER DOCTORS WHO CONSULTED ON PLAINTIFF’S TREATMENT DEPARTED FROM ACCEPTED PRACTICE BY FAILING TO DO FURTHER DIAGNOSTIC TESTING; IF SO, FAULT WOULD BE SHARED PURSUANT TO CPLR 1601 (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

EVIDENCE THE AREA WAS INSPECTED ONCE A MONTH DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE... DEFENDANT DID NOT DEMONSTRATE THE FOREIGN CORPORATION WAS DOING BUSINESS IN...