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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS BASED UPON INADMISSIBLE HEARSAY AND SHOULD NOT HAVE BEEN CONFIRMED BY SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the report was based upon inadmissible hearsay:

“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” … . Here, the affidavit of an employee of the plaintiff’s loan servicer, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records she purportedly relied upon in making her calculations … . Under the circumstances, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . Bank of N.Y. Mellon v Davis, 2021 NY Slip Op 02267, Second Dept 4-14-21

 

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