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​IN A FORECLOSURE PROCEEDING, A REFEREE’S REPORT BASED UPON UNPRODUCED BUSINESS RECORDS SHOULD NOT BE CONFIRMED BY THE COURT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the referenced business records were not attached to the report:

“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” … . However, computations based on the “review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … .

… [T]he referee’s report was improperly premised upon unproduced business records. … Therefore, the referee’s findings were not substantially supported by the record … . Nationstar Mtge., LLC v Douglas, 2023 NY Slip Op 03798, Second Dept 7-12-23

Practice Point: In a foreclosure proceeding, if the business records upon which the referee’s report is based are not produced, the court should not confirm the report because the report is not “substantially supported by the record.”

 

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