Opinion
2021-06990 Index No. 4224/10
09-27-2023
WELLS FARGO BANK, N.A., etc., respondent, v. Joseph P. LARONGA, etc., appellant, et al., defendants.
Binakis Law, P.C., Astoria, NY (Patrick Binakis of counsel), for appellant. Day Pitney LLP, New York, NY (Christina A. Livorsi of counsel), for respondent.
Binakis Law, P.C., Astoria, NY (Patrick Binakis of counsel), for appellant.
Day Pitney LLP, New York, NY (Christina A. Livorsi of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Joseph P. Laronga appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered October 2, 2019. The order and judgment of foreclosure and sale, insofar as appealed from, granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied, the referee's report is rejected, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.
In May 2008, the defendant Joseph P. Laronga (hereinafter the defendant) executed a note in the sum of $660,000, which was secured by a mortgage against certain real property located in Whitestone. On February 19, 2010, the plaintiff commenced this action to foreclose the mortgage, and the defendant thereafter interposed an answer. The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, and, in an order entered April 23, 2015, the Supreme Court, among other things, granted the plaintiff's motion without opposition. In June 2016, a referee issued a report containing a determination as to the amount due to the plaintiff. The plaintiff then moved to confirm the referee's report and for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale entered October 2, 2019, the court, among other things, granted the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property. The defendant appeals.
"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" ( Flagstar Bank, F.S.B. v. Konig, 153 A.D.3d 790, 790–791, 60 N.Y.S.3d 360 ; see HSBC Bank USA, N.A. v. Cherestal, 178 A.D.3d 680, 682, 113 N.Y.S.3d 206 ). However, computations based on the "review of unidentified and unproduced business records ... constitute[ ] inadmissible hearsay and lack[ ] probative value" ( Wells Fargo Bank, NA v. Oziel, 196 A.D.3d 618, 621, 152 N.Y.S.3d 123 ; see Hudson City Sav. Bank v. DePasquale, 189 A.D.3d 1558, 1561, 139 N.Y.S.3d 645 ). Here, the referee based her findings upon her review of the note and mortgage, the summons and complaint, and an affidavit of merit and amount due of the plaintiff's employee, which listed the amounts due by month and the interest rate, as well as the taxes and insurance paid on the defendant's account. However, as the defendant correctly contends, the affidavit "constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records [s]he purportedly relied upon in making [her] calculations" ( U.S. Bank N.A. v. Barton, 207 A.D.3d 496, 498, 169 N.Y.S.3d 523 [internal quotation marks omitted]; see HSBC Bank USA, N.A. v. Sharon, 202 A.D.3d 764, 766, 158 N.Y.S.3d 834 ; Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 208–209, 97 N.Y.S.3d 286 ; Citimortgage, Inc. v. Kidd, 148 A.D.3d 767, 768–769, 49 N.Y.S.3d 482 ). Moreover, while the referee's report found that the mortgaged premises should be sold in one parcel, the referee failed to identify the documents or other sources upon which she based that finding (see Wilmington Sav. Fund Socy., FSB v. Mehraban, 192 A.D.3d 1066, 146 N.Y.S.3d 130 ; Citimortgage, Inc. v. Kidd, 148 A.D.3d at 769, 49 N.Y.S.3d 482 ). Under the circumstances, the referee's findings with respect to the total amount due and whether the subject property could be sold in one parcel were not substantially supported by the record (see U.S. Bank N.A. v. Barton, 207 A.D.3d at 498, 169 N.Y.S.3d 523 ; HSBC Bank USA, N.A. v. Sharon, 202 A.D.3d at 766, 158 N.Y.S.3d 834 ).
Since the defendant failed to oppose the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against him, and did not seek to vacate the order granting that motion, the defendant is precluded from raising the plaintiff's alleged failure to comply with RPAPL 1304 or 1306 as a defense to this action (see JPMorgan Chase Bank, N.A. v. Bracco, 200 A.D.3d 765, 766, 155 N.Y.S.3d 102 ).
Accordingly, the Supreme Court should have denied the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and we remit the matter to the Supreme Court, Queens County, for a new report computing the amount due to the plaintiff and the entry of an appropriate amended judgment thereafter.
CONNOLLY, J.P., MALTESE, WOOTEN and VOUTSINAS, JJ., concur.