On April 9, 2025, the Second Department issued a decision in U.S. Bank N.A. v. Winnie Realty Group, LLC, 2025 NY Slip Op. 02097, rejecting a referee’s report because it was based on an insufficient supporting affidavit, explaining:
The referee based his findings on an affidavit of an employee of the plaintiff’s loan servicer, Velocity Commercial Capital (hereinafter Velocity). In her affidavit, Velocity’s employee averred, among other things, that the defendant defaulted on the loan on February 1, 2020. The affidavit also set forth the amount then due and owing on the loan and annexed certain records thereto purportedly evidencing the payment history and the amount due, which included information dating back to 2018. A limited power of attorney annexed to the affidavit, however, permitted Velocity to act on the plaintiff’s behalf as of February 20, 2020, the date of execution, establishing that Velocity only began creating business records relating to this loan as of that date. Since Velocity’s employee did not attest that the records of any other entity were provided to Velocity and incorporated into its records, that Velocity routinely relied upon such records in its business, or that the affiant had familiarity with the business practices and procedures of any other entity, the plaintiff failed to lay a proper foundation for the records relied upon with respect to the defendant’s alleged default and the amount due to the plaintiff. Therefore, the referee’s findings were not substantially supported by the record.
(Internal citations omitted).