On December 8, 2022, the First Department issued a decision in Fuks v. Rakia Assoc., 2022 NY Slip Op. 06995, holding that a court erred in ruling on a referee’s decision without considering the evidence that the referee considered, explaining:
Where, as here, the Referee’s factual findings are disputed, a court may not make an order on the referee’s report without having before it the testimony in some form or agreement by the parties as to its substance sufficient to permit the court to pass upon a challenge made to the sufficiency of the evidence. The matter should thus be remitted to the motion court for a new decision that takes into consideration the transcripts and other evidence before the Referee.
(Internal quotations and citations omitted).