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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS INADMISSIBLE HEARSAY BECAUSE THE BUSINESS RECORDS UPON WHICH THE REPORT WAS BASED WERE NOT PRODUCED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the business records on which the referee’s calculations were based were not attached to the referee’s affidavit, rendering the affidavit hearsay:

… [T]he referee’s report was based upon her review … of the note and mortgage, the summons and complaint, and an affidavit of merit and amount due, which listed the amount due to the plaintiff. However … the affidavit constituted inadmissible hearsay and lacked probative value because the affiant failed to produce the business records purportedly relied upon in making her calculations … . Countrywide Home Loans Servicing, L.P. v Weberman, 2024 NY Slip Op 04240, Second Dept 8-21-24

Practice Point: An affidavit which purports to rely on records which are not attached is inadmissible hearsay.

 

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