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NO FOUNDATION FOR THE ADMISSIBILITY OF BUSINESS RECORDS RELIED UPON BY THE REFEREE WAS LAID; THE REFEREE RELIED ON UNIDENTIFIED AND UNPRODUCED RECORDS; THE JUDGMENT OF FORELCOSURE SHOUILD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judgment of foreclosure was not supported because the referee’s report was based on documentary evidence which was not identified or produced and for which no foundation had been laid in the relevant affidavit:

… [T]he referee relied on an affidavit of Tom Croft, an “SVP of default” of Carrington Mortgage Services, LLC, attorney-in-fact for the plaintiff. Croft’s affidavit was insufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 4518(a), because he failed to attest that he was personally familiar with the record-keeping practices and procedures of his employer or the plaintiff … . Moreover, Croft’s computations were “based upon a review of unidentified and unproduced business records” and, consequently, “constitute[d] inadmissible hearsay and lack[ed] probative value” … on that additional ground. The error in relying on Croft’s hearsay evidence was not harmless, as, contrary to the plaintiff’s contention, the referee’s determination is not substantially supported by any admissible evidence in the record … . Bank of Am., N.A. v Barnett, 2025 NY Slip Op 04861, Second Dept 9-10-25

Practice Point: Unless the business records relied upon in the referee’s report are produced and supported by an adequate foundation, the report is inadmissible hearsay.

 

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