Summary
This New York Appellate Division decision addresses a mortgage foreclosure action where the defendant appealed the trial court's confirmation of a referee's report and subsequent judgment of foreclosure and sale. The appellate court reversed the lower court's orders, finding that the plaintiff failed to establish a proper foundation for admitting third-party business records into evidence to support the referee's computations. The matter was remanded to the Supreme Court, Kings County, for a new referee's report computing the amount due, followed by further proceedings under CPLR 4403.
Topics
Practice areas
Questions Presented
- Whether the referee's report was substantially supported by the record and therefore subject to confirmation
- Whether the trial court erred in admitting documents as business records without proper foundation
- Whether the appeal from the order was proper given the entry of the judgment of foreclosure and sale
Holdings
- The appellate court reversed the order confirming the referee's report because the report was not substantially supported by the record.
- The appeal from the order is dismissed because the right of direct appeal terminated with the entry of the judgment of foreclosure and sale.
Key quotations
“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.” (at 1)
“The referee's findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute.” (at 1)
“[A]s a general rule, the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records.” (at 3)
Factual background
The plaintiff sought to foreclose a mortgage on real property in Brooklyn. The defendant failed to answer the complaint. The trial court appointed a referee who prepared a report based largely on an affidavit and various invoices. The plaintiff sought confirmation of the referee's report and a judgment of foreclosure and sale.
Procedural history
The Supreme Court, Kings County appointed a referee to compute the amount due on a mortgage. The plaintiff moved to confirm the referee's report and obtain a judgment of foreclosure. The trial court granted the motion and entered a judgment of foreclosure and sale. The defendant appealed both the order confirming the report and the judgment.
Remand instructions
Remit the matter to the Supreme Court, Kings 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.