You are here: / / THE DOCUMENTS UPON WHICH THE CALCULATIONS IN THE REFEREE’S REPORT...
,

THE DOCUMENTS UPON WHICH THE CALCULATIONS IN THE REFEREE’S REPORT WERE BASED WERE NOT PRODUCED RENDERING THE REPORT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report was inadmissible hearsay because the documents upon which the calculations were based were not produced:

The defendant correctly contends, however, that the referee’s calculation was not substantially supported by the record. Modlin’s [the loan servicer’s] affidavit, which was submitted to the referee for the purpose of establishing the amount due on the mortgage loan, appeared to lay a proper foundation for the admission of the business records on which she relied, including the payment history for the loan, in making her calculations. Modlin averred that she was an authorized signatory of Caliber, U.S. Bank’s loan servicer and attorney-in-fact, that she had reviewed Caliber’s electronic records regarding the defendant’s account, and that she had “knowledge of how those electronic records [were] kept and maintained” … . Modlin further averred that the business records of any prior servicer had been “uploaded and boarded into [Caliber’s] computer records” and were “maintained in connection with the servicing of [the subject] loan”,,, , In addition, U.S. Bank Trust demonstrated Caliber’s authority to act on its behalf by submitting the limited power of attorney.

Nevertheless, computations based on the review of unproduced business records amount to inadmissible hearsay and lack probative value … . Here, U.S. Bank Trust did not submit to the referee copies of the business records upon which Modlin purportedly relied in computing the amount due on the mortgage loan. Consequently, the referee’s findings in that respect were not substantially supported by the record … . U.S. Bank Trust, N.A. v Bank of Am., N.A., 2022 NY Slip Op 00213, Second Dept 1-12-22

 

You might also like
EVIDENCE DEFENDANT HAD BEEN ACCUSED OF FRAUDULENTLY PRACTICING DENTISTRY IN THE PAST WAS NOT RELEVANT TO THE INSTANT PROCEEDING ALLEGING THE UNLICENSED PRACTICE OF DENTISTRY; THE PREJUDICIAL EFFECT WAS EXACERBATED BY REFERENCES TO THE ALLEGED FRAUD BY THE PROSECUTOR IN SUMMATION AND BY THE JUDGE IN THE INSTRUCTIONS TO THE JURY; DEFENDANT’S CONVICTION REVERSED (SECOND DEPT).
PLAINTIFF BANK NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE IT FAILED TO DEMONSTRATE COMPLIANCE WITH RPAPL 1304, A CONDITION PRECEDENT; DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE HE DID NOT DEMONSTRATE THE BANK FAILED TO COMPLY WITH RPAPL 1304 (SECOND DEPT).
THE NOTICE TO ADMIT SOUGHT CONCESSIONS THAT WENT TO THE ESSENCE OF THE CONTROVERSY AND THEREFORE WAS PALPABLY IMPROPER (SECOND DEPT).
WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT). ​
IN A COMPREHENSIVE OPINION WITH DETAILED DISCUSSIONS OF THE FELLOW OFFICER RULE, THE STOP OF A VEHICLE BASED ON AN OBSERVED TRAFFIC VIOLATION, THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT, AND THE VALIDITY OF AN INVENTORY SEARCH, COUNTY COURT’S DENIAL OF THE MOTION TO SUPPRESS THE COCAINE FOUND IN THE VEHICLE IS REVERSED OVER TWO CONCURRENCES AND A TWO-JUSTICE DISSENT (SECOND DEPT).
DEVISE OF REAL PROPERTY HAD NOT ADEEMED, DESPITE DEED PURPORTING TO TRANSFER PROPERTY PRIOR TO DEATH.
NO ONE, INCLUDING DEFENDANT DRIVER, SAW THE 17-MONTH-OLD BEFORE HEARING A LOUD “THUMP” AND FINDING THE CHILD LYING BEHIND DEFENDANT’S CAR; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE AGREEMENT WHICH PROVIDED PLAINTIFF WOULD PAY DEFENDANT ABOUT $38,500 AND... IN THIS FORECLOSURE ACTION, THE ACCRUAL OF INTEREST SHOULD HAVE BEEN TOLLED...