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IN THIS FORECLOSURE ACTION, THE BUSINESS RECORDS UPON WHICH THE REFEREE’S CALCULATIONS WERE BASED WERE NOT ATTACHED TO THE REFEREE’S AFFIDAVIT, RENDERING THE AFFIDAVIT HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been accepted because the business records upon which the calculations were based were not attached to the affidavit:

 … [A] referee’s computations based on the “review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … . Here, the referee based his calculations upon documentary evidence submitted by the plaintiff, including the note and mortgage, as well as an affidavit of amount due and owing, submitted in support of the motion to confirm the referee’s report. However, the affidavit of amount due and owing does not identify the business records upon which the affiant relied in order to compute the total amount due on the mortgage, and there are no such records annexed thereto. Consequently, the referee’s findings in that regard were not substantially supported by the record … . M&T Bank v Bonilla, 2023 NY Slip Op 01989, Second Dept 4-19-23

Practice Point: To the extent an affidavit refers to business records which are not attached the affidavit is hearsay.

 

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