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THE DOCUMENTS RELIED UPON FOR THE REFEREE’S REPORT WERE LISTED BUT NOT SUBMITTED, RENDERING THE REPORT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed in this foreclosure action because, although the documents the referee relied on were listed, the documents were not submitted. Therefore the report was hearsay:

The Supreme Court erred in granting the plaintiff’s motion, inter alia, to confirm the referee’s report and for a judgment of foreclosure and sale. “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” … . Ridgewood Sav. Bank v Kapoor, 2023 NY Slip Op 06396, Second Dept 12-13-23

Practice Point: In a foreclosure action the fact that the documents relied upon for the referee’s report were identified was not enough. Because the documents were not submitted, the report constituted inadmissible hearsay.

 

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