On July 29, 2026, the Second Department issued a decision in Wilmington Trust, N.A. v. Walker, 2026 NY Slip Op. 04793, holding that a referee erred in basing a damages award on unproduced evidence, explaining:
The Supreme Court erred in confirming the referee’s report. Generally, the report of a referee should be confirmed whenever the findings are substantially supported by the record. Computations based upon a review of unidentified and unproduced business records, however, constitute inadmissible hearsay and lack probative value. Here, the referee’s findings with respect to the amount due in principal and interest on the note were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records.
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.
(Internal citations omitted).