BANK NATIONAL ASSOCIATION AS TRUSTEE FOR CMALT REMIC 2007 A4 PRAA REMIC PASS THROUGH CERTIFICATES SERIES 2007 A4 v. Joshua Kirschenbaum et al., Defendants. (2021)

Order, Supreme Court, New York County (George J. Silver, J.), entered September 2, 2020, which granted plaintiff's motion to confirm the Referee report and for a judgment of sale and foreclosure, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded to Supreme Court for a new report computing the amount due plaintiff.

In his report of amount due upon the subject note and mortgage, the Referee relied on an April 13, 2018 affidavit by a vice president of plaintiff's loan servicer that, according to plaintiff's books and records pertaining to defendant's loan and payment history, defendant had been in default since August 1, 2011, and owed plaintiff the stated amount.  However, because the books and records themselves were not submitted, the affidavit is inadmissible hearsay (Deutsche Bank Natl. Trust Co. v. Kirschenbaum, 187 A.D.3d 569, 130 N.Y.S.3d 676 [1st Dept. 2020]).