Summary
This New York Appellate Division decision addresses an appeal in a mortgage foreclosure action where the defendants challenged an order confirming a referee's report and directing a foreclosure sale. The court reversed the lower court's judgment, holding that the plaintiff failed to lay a proper evidentiary foundation for supplemental business records submitted after reply papers, rendering the accompanying affidavit inadmissible hearsay. Consequently, the referee's findings lacked substantial support, and the matter was remanded to the trial court for a new computation of the amount due and further proceedings.
Topics
Practice areas
Questions Presented
- Whether the Supreme Court erred in granting the motion to confirm the referee’s report and enter a judgment of foreclosure and sale.
- Whether the business records submitted with the supplemental affidavit were admissible.
- Whether the appeal from the Jan. 16, 2024 order should be dismissed.
Holdings
- The Supreme Court erred; the order and judgment of foreclosure and sale are reversed, the motion to confirm the referee’s report is denied, and the matter is remanded for a new report computing the amount due.
Key quotations
“Generally, a plaintiff cannot satisfy its burden of demonstrating proof of the facts constituting the claim and the amount due by submitting the business records upon which an affidavit was based for the first time after the submission of its reply papers.” (at 793-794)
Factual background
Citimortgage, Inc. sued Mark and Danielle Rooney to foreclose a mortgage on property in Patchogue. The plaintiff relied on an affidavit and business records to prove the amount due. The Supreme Court found the original business records insufficient, adjourned the motion, and later granted the motion after the plaintiff submitted supplemental records. The defendants contended the supplemental records were not properly authenticated.
Procedural history
The Supreme Court, Suffolk County granted the plaintiff’s motion to confirm a referee’s report and entered a judgment of foreclosure and sale on May 20, 2024 after the plaintiff supplemented business records. The defendants appealed the Jan. 16, 2024 order and the subsequent judgment.
Remand instructions
Remit to the Supreme Court, Suffolk County, for a new report computing the amount due to the plaintiff, followed by further proceedings in accordance with CPLR 4403 and the entry of an appropriate amended judgment thereafter.