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THE FAILURE TO SUBMIT THE RECORDS UPON WHICH THE REFEREE’S CALCULATIONS WERE BASED RENDERED THE REPORT INADMISSBILE HEARSAY IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing the confirmation of the referee’s report in this foreclosure action, determined the absence of the records relied upon for the referee’s computations rendered the report inadmissible hearsay:

“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. In support of its motion, the plaintiff submitted an affidavit from an employee of the plaintiff, An Dang, which the referee relied upon in computing the amount due to the plaintiff. However, the record does not reflect that the plaintiff submitted the business records upon which An Dang or the referee relied in computing the total amount due on the mortgage, as well as payments for taxes, insurance, and other advances. Therefore, the referee’s findings were not substantially supported by the record … . U.S. Bank N.A. v Jong Shin, 2024 NY Slip Op 01029, Second Dept 2-28-24

Practice Point: In a foreclosure action, a referee’s report based upon records which were not submitted to the court is inadmissible hearsay.

 

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