THE REFEREE’S REPORT REFERRED TO UNPRODUCED DOCUMENTS RENDERING IT INADMISSBILE HEARSAY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed. The documents upon which the report was based were not produced, rendering the report inadmissible hearsay:

… [T]he plaintiff’s motion which were to confirm the referee’s report and for a judgment of foreclosure and sale should have been denied. “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 upon a review of unidentified and unproduced business records constitute inadmissible hearsay and lack probative value … .

Here, the referee’s report indicates, among other things, that “[t]he information contained herein was obtained from the books and records of plaintiff pertaining to the defendants’ loan and payment history.” However, the record does not reflect that those books and records were annexed to an affidavit of an another officer of the plaintiff’s former loan servicer. As the defendants contended in opposition to the plaintiff’s motion, inter alia, to confirm the referee’s report and in support of their cross-motion, among other things, pursuant to CPLR 4403 to reject the referee’s report, and as they contend on appeal, the referee’s computations as to the amounts due to the plaintiff for advances of taxes and insurance were based on unidentified and unproduced business records, and therefore, the referee’s assertions in those regards constituted inadmissible hearsay and lacked probative value … . Bank of N.Y. Mellon v Prestia, 2026 NY Slip Op 04735, Second Dept 7-29-26