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THE AFFIDAVIT UPON WHICH THE REFEREE’S REPORT WAS BASED DID NOT LAY A PROPER FOUNDATION FOR THE ASSERTIONS MADE BY THE AFFIANT AND THE CALCULATIONS IN THE AFFIDAVIT WERE BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED, RENDERING THE INFORMATION INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed. The affidavit submitted by the mortgage servicer was insufficient and the records upon which the calculations in the affidavit were based were not produced:

… [T]he referee’s report was not substantially supported by the record. The report was based in significant part on the affidavit of Elizabeth A. Ostermann, a vice president for Carrington Mortgage Services, LLC (hereinafter Carrington), the purported “servicer and attorney-in-fact” for the plaintiff. However, Ostermann did not set forth when Carrington began servicing the loan and did not provide a power of attorney appointing it as attorney-in-fact … . Moreover, Ostermann did not state that “she was personally familiar with the record-keeping practices and procedures” at Carrington … .

Furthermore, computations based on the “review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … . Here, the plaintiff did not submit the business records upon which Ostermann purportedly relied in computing the total amount due on the mortgage. Trust v Campbell, 2022 NY Slip Op 00845, Second Dept 2-9-22

Similar issue and result in HSBC Bank USA, N.A. v Sharon, 2022 NY Slip Op 00852, Second Dept 2-9-22

 

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