Citimortgage, Inc. v. Seller , 2020 NY Slip Op 06096 ( 2020 )

Citimortgage, Inc. v Seller (2020 NY Slip Op 06096)

Citimortgage, Inc. v Seller

2020 NY Slip Op 06096

Decided on October 28, 2020

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 28, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
LEONARD B. AUSTIN
JOHN M. LEVENTHAL
ROBERT J. MILLER, JJ.

2018-11136
2018-11138
(Index No. 54189/15)

[*1]Citimortgage, Inc., respondent,

v

Daniel Allen Seller, etc., et al., appellants, et al., defendants. Clair & Gjertsen, White Plains, NY (Mary Aufrecht of counsel), for appellants.

Davidson Fink LLP, Rochester, NY (Richard N. Franco of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Daniel Allen Seller and Brenda Reina Seller appeal from (1) an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated August 9, 2018, and (2) a judgment of foreclosure and sale of the same court dated August 9, 2018. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale. The judgment of foreclosure and sale, inter alia, confirmed the referee's report and directed the sale of the subject property.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment of foreclosure and sale is reversed, on the law, those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied, the referee's report is rejected, the order is modified accordingly, and the matter is remitted to the Supreme Court, Westchester 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; and it is further,

ORDERED that one bill of costs is awarded to the appellants.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1]).

"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" (Citimortgage, Inc. v Kidd, 148 AD3d 767, 768). Here, the affidavit of the plaintiff's vice president of document control, submitted for the purpose of establishing the amount due and owing under the mortgage loan, constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records upon which she purportedly relied in making [*2]her calculations (see Nationstar Mtge., LLC v Cavallaro, 181 AD3d 688, 689). Consequently, the referee's findings with respect to the total amount due upon the mortgage were not substantially supported by the record (see U.S. Bank N.A. v Calabro, 175 AD3d 1451, 1452; Citimortgage, Inc. v Kidd, 148 AD3d at 768-769).

In view of our determination, we need not reach the appellants' remaining contention.

Accordingly, we reverse the judgment of foreclosure and sale, deny those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale, modify the order accordingly, and remit the matter to the Supreme Court, Westchester County, for a new report computing the amount due to the plaintiff in accordance herewith, followed by further proceedings in accordance with CPLR 4403 and the entry of an appropriate amended judgment thereafter.

MASTRO, J.P., AUSTIN, LEVENTHAL and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court