Absent sufficient admissible evidentiary support. the Court is bound to find that "'the referee's findings with respect to the total amount due upon the mortgage [a ]re not substantially supported by the record" and must deny a request for its confirmation. Wells Fargo Bank. IVA. v Campbell, 196 AD3d 726. 727 r2ct Dept 2021 ]) citing US. Rof 111 Legal Tit. Trnst 2015-11· John, 189 AD3d 1645 r2d Dept. 2020]
Pursuant to CPLR § 4403, any party may move to confirm or reject a referee's report. and the Court must reject a referee's report when it is not supported by admissible evidence. See HSBC
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Bank USA, NA. v Cherestal, 178 AD3d 680 [2d Dept 2019]: .!,VG Constr .. Ltd. v Roussopoulos, 170 AD3d 113 6 [2d Dept 201 9] [To the extent the referee· s report was not supported by admissible evidence. it "should ... have been rejected. "l
Initially. plaintiffs contention that a party in default may not challenge the amounts due is without merit. While a party in default admits traYersable allegations in the complaint. the amount quantum of damages is always subject to challenge. Sec Rokina Optical Co., Inc. v Camera King. Inc .. 60 NY2d 728, 730-731 [1984][a defaulting defendant "docs not admit the plaintiffs conclusion as to damages ... plaintiffs real damages [l cannot be established by the mere fact of the defendanf s default .. ]: Wilmington Sm·. Fund Socy.. FSB v .Horiarty-Gentile. 190 AD3d 890. 892 [2d Dept 2021] [·· The fact that the defendants defaulted in appearing did not mean that they were precluded from contesting the amount owed:·]: Wells Fargo Bunk, ,VA. ,. Camphe/1. 196 AD3d 726 [2d Dept 2021 ][''The fact that the defendant defaulted in appearing did not mean that she was precluded from contesting the amount owed."]; Bank <~f.4.m.. X.A. , . .\:JcA/pin. 171 AD3d 999. 1000 [2d Dept 2019Ji•'Contrary to the Supreme Court's determination. the defendant was not precluded from seeking relief under Rule 8 by the denial of that branch of his motion \\ hich was to vacate his default in appearing in the action."]
Plaintiff's contention that relief or challenge to the referee's report as being barred by the law of the case doctrine is equally mcritless.
--The doctrine of the law of the case is a rule of practice. an articulation of sound policy that when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction arc concerned ... Such a rule is essential to an orderly and seemly administration of justice in a court composed of several judges ... " {JS. Bank NA. v Tenenbaum, 228 AD3d 696 [2d Dept 2024]; Bank ofNew York Mellon r Singh. 205 AD3d 866. 867 [2d Dept 2022]l'·The doctrine of the law of the case seeks to prevent relitigation of issues of law that have already been determined at an earlier stage of the proceeding."]
The doctrine of .. law of the case rests on a foundation that further distinguishes it from issue and claim preclusion. Whereas the latter concepts are rigid rules of limitation. law of the case is a judicially crafted policy that '"expresses the practice of courts generally to refuse to reopen what has been decided, [and is J not a limit to their power ... As such, law of the case is necessarily '·amorphous·' in that it ''directs a court's discretion,'' but does not restrict its authority:· People v Emns. 94 NY2d 499. 503 [2000]
"The law of the case doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision ... and to the same questions presented in the same case .. US. Bank NA. v Moss, 186 AD3d 1753. 1753 [2d Dept 2020 ![internal citations and quotation marks omittedl: Sec also Deulsche Bank Natl. Tr. Co. r Bruno. 239 AD3d 827. 829 [2d Dept 2025]['"The law of the case doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision and to the same questions presented in the same case .. ]:
Application of the doctrine requires that the issue have been "actually .. , --directly"' and "expressly'' decided in the prior ruling "on the merits'' and docs not apply to ''evidentiary" type rulings. See Ferolito v Vultaggio, 115 AD3d 541,542 [1st Dept 2014J[·'Mechanically the law of the case doctrine is similar to collateral estoppeL in that both require that an issue have been
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actually decided in order to pose a bar in a later proceeding."][ emphasis added]; Brown v State, 250 AD2d 314,320 [3d Dept 1998][emphasis added][''It applies "rw]here a court directly passes upon an issue which is necessarily involved in the final determination on the merits"][emphasis added]; Holt v Tioga County, 95 AD2d 934, 935 [3d Dept l 983]["we note that since neither ,ve nor the Court of Appeals expressly addressed these particular [] claims earlier, the doctrine of law of the case does not hinder our consideration of them now"] [emphasis added]; People v Evans, 94 NY2d 499, 504 [2000]["an "evidentiary" type ruling will normally not be binding"]
Contrary to plaintiffs contentions, a finding of liability upon a default judgment and order of reference makes no finding on damages. In fact the opposite is true, it expressly does not make any finding on damages and refers the matter to a referee to compute. The Court makes no determination as to when the default occurred, whether any payments were made before or afi:er the default and whether the plaintiff is entitled to recover any of the specific complained of amounts. See e.g. HSRC Mtge. Corp. [i')A v Tehrani, 229 AD3d 772, 777-78 [2d Dept 2024]['·Herc, the referee's findings with respect to the total amount due on the note were not substantially supported by the record, inasmuch as the referee's findings were premised upon a business record that covered the defendant's payment history beginning only in January 2015, whereas the referee's computation was based on the defendant having defaulted in October 2009."]; Citimortgage, Inc. v Rooney, 242 AD3d 695, 697 [2d Dept 2025]f"business records themselves were insufficient to establish the amounts attested to in the Benning affidavit, as they did not include the payment history with a monthly accounting of the loan"] lcitations omitted] 1
Here, the contentions raised by defendants were never presented to the Court, were never "actually'', "directly" and "expressly'· passed upon by the Court on the merits and are evidentiary in nature. Therefore, the law of the case doctrine is inapplicable.
Moreover, defendant is correct that Plaintiff fails to address-at all-several of Defendant's arguments demonstrating that Plaintiffs proof of the amount allegedly due is inadmissible. Under settled appellate authority, arguments raised by the movant but not addressed in opposition are deemed conceded. See Wilmington Sav. Fund Socy., FSB v Cuong Vi Cao, 242 AD3d 1045, 1047 [2d Dept 2025]["Jn opposition to the plaintiffs motion, the defendant failed to address the plaintiffs contention ... Therefore, the defendant, in effect, conceded that no issue of fact existed in that regard'']; Md\lamee Const. Corp. v City of'Nnv Rochelle, 29 AD3d 544 [2d Dept 2006]["The Supreme Court also erred in failing to dismiss the third-party plaintiffs claim for contribution/common law indemnification, as the third-party plaintiff failed to address or controvert the third-party defendants' arguments in this regard."];See also Kuehne & 11/agel. Inc. v Raiden. 36 NY2d 539, 544 [l 975]["'Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted ... and where there are cross motions ... in the absence of either party challenging the verity of the alleged facts, as is true in the instant case,
1 Thus, the cases discussing certain claims on damages being a matter of simple arithmetic are inapposite as they are only applicable when the elements necessary for the fonnula and the calculation are supplied by admissible evidence in the record. See e.g. Simon v Electrospace Corp., 28 NY2d 136 [ 1971 )["there must be a redetennination of damages, hut on a.formula, the elements of which are supplied by the record, thus requiring no more than a simple arithmetic computation.''](emphasis added]. The requirement that a plaintiff produce evidence in admissible fonn for all the elements necesSal)' to demonstrate damages is so elementary it scarcely requires elaboration. Here, essential elements necessary for a determination on damages are not in the record and therefore must be supplied with competent and admissible evidence.
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there is. in effect. a concession that no question of fact exists"]; Firth v State, 287 AD2d 771. 772 [3d Dept 2001 ]['"It is well settled that the consequence of failing to respond to a fact set forth in motion papers is a deemed admission··]. affd. 98 NY2d 365 [2002]
In any case. defendant is correct that the referee's report is not substantially supported by the record and must be rejected. The referee· s report relies entirely on the Thurab Affirmation whose authority has not been established and whose testimony and annexed documents are inadmissible hearsay.
First. the powers of attorney are insufficient to demonstrate authority to act for plaintiff. Annexed to the Thumb Affirmation are a power of attorney from US Bank. NA to NewRez dated July 2, 2019. and a power of attorney from NewRcz to PHH dated July IL 2019. which was allegedly executed pursuant to July 2, 2019, power of attorney. However, the July 2, 2019 power of attorney expressly provides that documents "may only be executed and delivered by such Attorneys-In-Fact if such documents arc required or permitted under the terms of the related servicing agreements·• and further provides that '"Servicer has the power to execute additional limited powers of attorney and delegate the authority ... under the applicable servicing agreements for the Trusts." Here, plaintiff did not proffer the submit the subject servicing agreements. Therefore. plaintiff failed to demonstrate that Nevv-Rcz had authority to execute a power of attorney in favor of Pl II l or that Ms. Thurab has the requisite authority to act on behalf of plainti ff.
Therefore, the referees report is not substantially supported by the record and plaintiffs motion to confirm same and for judgment offoreclosurc is denied. Sec US. Bank N.A. v Tesoriero, 204 AD3d 1066 [2d Dept 2022] [··the limited power of attorney submitted ... restricted and conditioned its authority based on the terms of other agreements which were not provided by the plaintiff. Thus. the limited power of attorney was insufficient to demonstrate that Nationstar possessed the authority to act on behalf of the plaintiff']; See also See HSBC Bank USA, NA. v. Bells. 67 Ad3d 735 [2d Dept 2009]; Citihank. NA. r / Jerman. 215 /\D3d 626 [2d Dept 2023 J; US Bank 1VA. v Cusati, 185 AD3d 870 [2d Dept 2020].
Second. the Thurab Affirmation and the proffered evidence are inadmissible and therefore, the referee's report is not substantially supported by the record.
··[T]o establish a foundation for the admission of a business record. the proponent of the record must satisfy the requirements identified in the statute (see CPLR 4518[a]). First, the proponent must establish that the record be made in the regular course of business-essentially. that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business .... Second, the proponent must also demonstrate that it be the regular course of such business to make the record ... essentially. that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record ... Third, the proponent must establish that the record be made at or about the time of the event being recorded--essentially, that recollection be fairly accurate and the habit or routine of making the entries assured:· Bank of New York Jfel/on v Gordon. 171 AD3d I 97 [2d Dept 20 l 9][internal citations and quotation marks omitted and emphasis added]
"In addition to these statutory requirements, the Court of Appeals has held that ''[ u lnless some other hearsay exception is available. admission may only be granted where it is demonstrated
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that the informant has personal knowledge of the act. event or condition and he [or she] is under a business duty to report it to the entrant"' Id citing Matter ofLeon RR, 48 NY2d 117 11979].
Lastly, if the proffered record is an "electronic record", the proponent must also provide sufficient information to establish that the proffered record "'is a true and accurate representation•· of the electronic record. See CPLR 4518[a]: See e.g. Palisades Collection, Ll,C v Kedik. 67 AD3d 1329 [4th Dcpt2009]:SpeirsvNot Fade Away Tie Dye Co .. 236AD2d 53L 531 [2d Dept 1997].
First. Ms. Thurab fails to attest to personal knowledge of plaintiffs record keeping practices and procedures.
The law is well settled thar "[ a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures·· Ingber r J1artine::. 191 AD3d 959 [2d Dept 2021 ][emphasis added]. quoting Citibank, NA. v Cubrcra. ] 30 AD3d 861 [2d Dept 2015]; Sec also Fed. Natl. Mtge. Assn. ,. lvfarlin. 168 AD3d 679 [2d Dept 2019]["When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facic case, .. ta] proper foundation fr)r the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures'·]
Here. Ms. Thurab does not aver that she was personally familiar with PHH's record keeping practices and procedures. Rather. she vaguely claims that she is ··familiar v;ith the business records maintained by PHI I for the purpose of servicing mortgage loans. collecting payments and pursuing any delinquencies" and arc ·'[b]ascd on my training and my general knowledge of the processes by which PHH's Servicing Records are created and maintained".
"Since [Ms. 'lburabJ failed to attest that she was personally familiar with the record- keeping practices and procedures of the entity that generated the subject business records. she failed to demonstrate that the records relied upon in her aflidavit were admissible under the business records exception to the hearsay rule." HSBC' Bank USA. lV.A. v Williams. 177 AD3d 950 [2d Dept 2019]: Jndy.\Iac Fed Bank. F5B r l'antassell. 187 AD3d Tl.5. 727 [2d Dept 2020][ .. Here, [the Thurab Affirmation] was insufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 451 S(a). because she failed to attest that she was personally familiar \Vi th the record-keeping practices and procedures of her employer. [PHH]. the entity that generated the subject business records. Accordingly. she failed to demonstrate that the records relied upon in her affidavit were admissible under the business records exception to the hearsay rule ... Thus. [the Thurab Affirmation], upon which the referee relied, constituted inadmissible hearsay and lacked probative value" on the issue of the amount due and owing to the plaintiff, including the amount of interest due for the relevant period ... and the Supreme Court erred in confirming the report. ''][internal citations and quotation marks omitted]
Second, Ms. Thurab fails to lay --a factual foundation sufficient to demonstrate fthe proffered exhibits'] admissibility as business records." U."-,'. Bank N.A. v Kaur. 177 AD3d 1016 [2d Dept 2019]t''Thc documents comprising the plaintiffs exhibit 5 should not have been admitted into evidence because they were not properly certified or authenticated, and \\ere not supported by a factual foundation sufficient to demonstrate their admissibility as business records .. ]; Werner v City of New York. 135 AD3d 740 [2d Dept 2016]['Those printouts were not in admissible form,
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since they were not certified or authenticated. and were not supported by a factual foundation sufficient to demonstrate their admissibility as business records.''J; Dyer v 930 Flushing, LLC, 118 AD3d 742 [2d Dept 2014l[·'However, the computer printout submitted ... was inadmissible. since it was not certified or authenticated ... and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record"]
"Generally. business records are not self-proving. and determinations of their admissibility often require testimony of qualified witnesses familiar with hmv the documents are created.'' Montes v Ne1r York Ci(v Tr. Auth., 46 AD3d 121 f I st Dept 2007]
·"In order for a piece of evidence to be of probative value. there must be proof that it is what its proponent says it is. The requirement of authentication is thus a condition precedent to admitting evidence" People v Price. 29 NY3d 472, 476 [2017]
While Ms. Thurab sets forth general business procedures. she fails to allege that the documents attached to her affirmation were created and maintained in accordance \Vith such general procedures. or that each exhibit to her aflirmation is a record of a contemporaneous event. used or relied upon in the ordinary course of business. let alone substantiate such an allegation with specific facts. CPLR 4518[a] is not satisfied by merely establishing that it \\as the regular course of business to generally make records or writings. It must be established that each specific exhibit "was made in the regular course of business," that is, the record was created in accordance with the established business practice, at or about the time of the transaction. Conclusory assertions are insufficient to enter judgment.
There can be no question that a plaintiff would fail to lay a business records foundation at trial merely by describing its general business practices without disc losing the specific procedures releYant to each of proffered records separately and whether each of those records were created and maintained in accordance with such procedures.
Here, the Thurab Affirmation is silent regarding the specific foundational requirements for each exhibit and there is no admissible evidence to find that any of exhibits were made in the ordinary course of business. The recitation of some conclusory phrases in an opening paragraph does not satisfy the requirement to lay foundation for each exhibit or each part thereof. See e.g. Vermont Com'r of' Banking and Ins. v Weihilt Corp .. 133 AD2d 396 [2d Dept I 987][rejecting evidence that did not have individualized foundation]: See also Scousda/e Ins. Co. l' Casino De,·. Group. Inc., 216 AD3d 602 [I st Dept 2023 J: Cnifimd CCR Parlners ,. foungman. 89 AD3d 1377 l4th Dept 2011]: Matter of'Jodel KK. 189 AD2d 63 [3d Dept 1993]; 0 'Connor l' Inc. Vil. O(I'or, Jefferson, 104 AD2d 861 l2d Dept 1984]
Indeed, not all the exhibits attached to the Thurab Affirmation are even business records including the recorded mortgage and order of reference. Therefore, her attempt at laying a blanket foundation is without merit. Moreover, the referee's report itself. does not state that it was based on any of the specific records other than the Thurab Affirmation.
Therefore, the absence of a proper evidentiary foundation renders Ms. Thumb's "factual assertions based on those records ... inadmissible hearsay" [JS. Bank ,V.A. ,, Simpson. 216 AD3d 1043 [2d Dept 2023]
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Third, Ms. Thurab does not attest that the electronic record attached to her affidavit "is a true and accurate representation'' of the electronic record. See e.g. Palisades Collection, LLC r Kedik. 67 AD3d 1329 [4th Dept 2009]: Speirs,, Xot Fade All'ay Tie Dye Co .. 236 AD2d 531. 531 [2d Dept 1997]: See also Federal 1Vational Morrgage Association v NB 1168 Realty LLC. Index No. 18271/2008, NYSCEF Doc. 137 [Sup Ct Kings County 2024][Neckles J.]
Lastly, Ms. Thurab does not attest that the creation of the records attached to her affidavit or the information contained therein were provided by someone with a business duty to accurately record and enter the relevant information as required by the Court of Appeals. See, e.g., Matter of Leon RR. 48 NY2d 117 l] 979]; Bank o/A'ew York Mellon v Gordon, supra; US Bank Tr. Nat. Ass'n v Freund. 2026 N.Y. Slip Op. 30595[C] fSup Ct, Kings County 2026][Walker-Diallo. J.]
Accordingly. for all the above reasons, the Thurab Affirmation and documents attached thereto are inadmissible hearsay and referee·s report is not substantially supported by the record. Therefore. the referee's report is rejected.
Finally. plaintiff does not argue or contest that upon rejection of the referees report, it is entitled to an award of only nominal damages and therefore concedes same. See TiVilminglon Sm·. Fund Socy.. FSR v Cuong Vi Cao, supra; McNamee Const. COip. v Cily ofA'ew Rochelle, supra; See also Kuehne & Nagel. Inc. v Baiden, supra; Firth v State, supra.
In any case defendant is correct that upon rejection of the referee's report plaintiff is entitled to a judgment only nominal damages for the reasons stated in l/.S. Bank YA. as Tr. jhr CMLTJ 2007-ARJ v Sch1vartz, 2025 NY Slip Op 25271 ISup Ct Dec. 8, 2025][ Mirocznik, J.]; See also US Bank Tr. Nat. Ass'n r Freund, 2026 N.Y. Slip Op. 305951U] [Sup Ct, Kings County 2026][Walker-Diallo. J.][··As such, this Court joins Judge Mirocznik in the '·hopes that the Appellate Division, the Court of Appeals or the legislature will address this important issue from the perspective of judicial economy ... This Court likewise experiences a heavy docket of dozens of repetitive, deficient foreclosure motions each week."] 2
Although not claimed by plaintiff, the Court notes that the results herein are not inequitable and are the natural consequence of plaintifrs lack of diligence. careless practice and what must be the equal application of the law.
The maxim is ancient and absolute: equity shadov,;s the law. See Sei/i· City ollong Beach,
2 The Court notes its appreciation that another member of the Judiciary has spoken candidly to the unusual and unwarranted practice of affording a particular class of litigants a procedural indulgence not available to others. and to the corresponding and needless burden imposed on both trial and appellate courts when matters are repeatedly remitted to referees for the submission of additional proof, only for those submissions to prove deficient yet again. The public should also be aware that this Court has. in motion papers and open Court. been su~jected to improper attempts at intimidation. and threatened with admonishment and the reassignment of its foreclosure docket if this Corni does not rule in the favor ofche lending institution. See e.g. L'.S Bank frust X.A. 1·. ,\!(Her: Index No. 515603 2016 at NYSCEF Doc. 385. Those threats are without consequence. All litigants of Kings County, \\ horn this Court has the honor and pleasure of serving. may rest assured that this Court remains faithful to its oath and will continue to apply the law equally. evenhandedly. and independently. Much like the Im\. this Court will neither bend nor yield to pressure from lending institutions or their counsel. \vhich remain free to seek whatever relief they believe they arc entitled to at the Appellate Division, Second Department located at 45 Monroe Place Brooklyn, NY 1120 I. See Bank of New York v Si/i·erberg. 86 AD3d 274. 283 [2d Dept 2011] ['"the law must not yield to expediency and the convenience of lending institutions."]
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286 NY 382, 387-88 [194l]["this court has given emphatic warning that equitable powers of the courts may not be invoked to sanction disregard of statutory safeguards and restrictions."]: Leibowits v Leibow;rs, 93 AD2d 535, 546 [2d Dept l 98Jl["Courts possessed of equitable pO\ver no longer inaugurate attacks on legal doctrines: instead, they confine themselves for the most part to the application of substantive and procedural rules established by statute or evolved incrementally by judicial precedent."']; Armstroni v Etceptional Child ( 'tr., Inc., 575 US 320. 327- 28 [201 S]l''Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts oflaw.'"];
New York courts further follow the foundational principle that "equity aids the vigilant" and that ··[ e ]quity requires that he who would invoke its aid must himself be diligent.·· Jfikulec v. United Slates, 705 F.2d 599, 602 [2d Cir. 1983].
Plaintiff v.,as not vigilant. Plaintiff was not diligent. A court of equity cannot override binding evidentiary rules simply because a powerful party finds the result inconvenient. The evidentiary requirements governing proof of damages in foreclosure proceedings arc not bureaucratic technicalities to be brushed aside when a sophisticated institutional lender comes up short. They are the law. Plaintiff had every obligation to know them, meet them, and satisfy them. It did none of these things. No principle of equity rescues a party from the wreckage of its own ineptitude and litigation failures. Nominal damages are not a punishment visited upon Plaintiff by an unkind court. They are the law's measured response to a plaintiff that established a right but refused - or failed - to prove its entitlement to a specific remedy. Whatever prejudice exists here is entirely self-inflicted. Plaintiff was given the opportunity to marshal competent, admissible evidence. It squandered that opportunity. A court docs not prejudice a litigant by holding it to its burden - it simply fulfills its most basic function.
Having squandered its first opportunity on its first application, then again. a second time, and now its third in opposition to defendants· cross-motion, plaintiff ,vas provided more than sufficient opportunity to demonstrate its damages. Plaintiff has not requested another attempt and the same would in any case be unwarranted. This Court should not be transformed into a testing ground where an institutional plaintiff flings papers at the Court until something finally sticks. The finality of judgments is not a procedural nicety .~ it is the bedrock upon which the entire justice system rests. Plain ti ff was afforded a full and fair opportunity to prove its case. Repeated remittals for that purpose squander limited judicial resources, delay the resolution of cases. and create the appearance that certain litigants are afforded procedural indulgences unavailable to others. That is an abuse of the judicial process, not a proper exercise of it and this is not what taxpayers are entitled to expect from their courts and is not what they signed up for. That it failed is not this Court's problem to remedy. The rules of evidence - authentication requirements, the business records exception. the best evidence rule - exist for precisely this situation: to prevent large money judgments from being entered on the basis of unreliable. unauthenticated, or otherwise deficient documentation. if Plaintiffs records are inadmissible. there is a reason. Granting a six-figure award on documents the law refuses to credit would not be equity. but its perversion.
Ultimately. the doctrine of nominal damages rests on the premise that a claimant may have established a legal entitlement to relief while failing, when afforded the opportunity to prove the amount claimed with competent and admissible evidence. In that circumstance, the law does not permit the Court to supply what the proof did not. Rather. it limits recovery to nominal damages,
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thereby recognizing the right while declining to award sums that were not established with the requisite certainty. Thus. the policy underlying nominal damages expressly contemplates that more may have been recoverable had the claimant made the necessary evidentiary showing when given the chance. Whether the claim is for one hundred dollars or one billion dollars is beside the point. The burden of proof does not diminish or expand with the size of the number asserted. A claimant either proves its damages with competent. admissible evidence or it docs not. If it does not, despite having been afforded the opportunity to do so. the court is not obliged to keep reopening the record to permit serial attempts at proof.
Where that opportunity \vas provided and the proof remained deficient. it is both proper and equitable to award less than was demanded. because the law vindicates proven rights. not spcculatiw amounts. Sec Freund \' TYashinglon Sq. Press. Inc.. 34 NY2d 3 79, 383-84 [ 1974 J [·•Since the damages which would have compensated plaintiff for anticipated royalties were not proved with the required certainty, we agree with the dissent in the Appellate Division that nominal damages alone are recoverable ... Though these are damages in name only and not at all compensatory, they are nevertheless awarded as a formal vindication of plaintiff's legal right to compensation v.•-hich has not been given a sufficiently certain monetary valuation."]
The rules of evidence and the consequences of failing to meet one's burden apply with equal force to a prose litigant and to a trillion-dollar financial institution. A struggling homeovmer \Vho failed to submit admissible evidence of damages would receive no equitable reprieve. Neither will Plaintiff in this Court. To create a special, more forgiving regime for institutional creditors - where the stakes arc high enough to justify relaxed evidentiary standards - \\·ould be an affront to the equal administration of justice. The equal protection guarantees of the Federal and New York Constitutions command that similarly situated litigants be treated alike. A rule that excuses banks from the consequences of evidentiary failure while holding all other plaintiffs to those consequences is not merely bad policy - it is constitutionally suspect. This principle is entirely consistent with the uniform application of other rules that enforce finality without regard to the merits: statutes of limitations extinguish valid claims (see e.g., Deutsche Bank Natl. Tr. Co. v Flagstar Capital Markets Corp.. 32 NY3d 139. 151 [2018] (dismissing a claim in excess of$1.4 billion]); denials of ne\v trials stand even when damages were contested: and default judgments arc not disturbed simply because a defaulting party believes it had a strong defense. The law does not grade on a cur, e. Neither will this Court.
Finally, the Court need not reach defendant's alternate contention that this action must be dismissed pursuant to Kings County Uniform Civil Term Rules. Part F. Ruic 7
Accordingly, it is hereby
ORDERED, that Plaintiffs motion is DENIED and Defendant's cross-motion is GRANTED, and the Referee's Report is rejected. The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any reliefrequested was not addressed by the Court it is hereby DENIED· and it is further
ORDERED, that a Judgment of Foreclosure is executed herewith in favor of Plaintift: fixing the amount due under the note and mortgage in the nominal amount of $1.00: and it is further
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ORDERED AND AD.JUDGED that Defendant(s), their counsel, and any person or entity with the equity of redemption may redeem the property by the unconditional tender of payment of $ 1.00 by mail, wire, or other method. to Plaintiff: its counsel of record (McCabe, Weisberg & Conway. LLC). or its current loan servicer (NewRez LLC/Shellpoint Mortgage Servicing) at any time prior to the foreclosure sale, and upon such tender, the consolidated mortgage dated September 29, 2004 and securing a sum of $250,000.00, recorded in the Office of the City Register of the City of New York on October 21, 2004 at CRFN: 200400065292 l and which consolidated mortgage was ultimately assigned to Plaintifl which, pursuant to this judgment, shall be deemed satisfied, cancelled, and discharged of record- and it is further
ORDERED AND ADJUDGED. that the Notices of Pendcncy [NYSCEF Doc. 3. 32, 73 and 95] be cancelled. and the consolidated mortgage dated September 29, 2004 and securing a sum of $250.000.00. recorded in the Office of the City Register of the City of New York on October 21. 2004 at CRFN: 200400065 2921. along with this j udgmenL be satisfied. cancelled and discharged of record upon the presentation or filing with NYSCEF of a copy of an affirmation attesting to the unconditional tender of payment of $1 by mail, wire or otherwise to Plaintiff. Plaintiffs counsel of record herein (McCabe, Weisberg & Conway, LLC), and/or Plaintiffs servicer (NewRez LLC/Shellpoint Mortgage Servicing), at any time prior to the foreclosure sale, and the Clerk and Office of the City Register shall note each cancellation, satisfaction, and discharge on its records; and it is further
ORDERED, that the Office of the City Register is directed to accept and record a certified copy of this Order Judgment. and accept and record a copy of the affirmation attesting to the unconditional tender of payment of $1.00 by mail, wire or otherwise to Plaintiff. Plaintiffs counsel of record herein (McCabe, Weisberg & Conway, LLC), and/or Plaintiffs servicer (NewRez LLC/Shellpoint Mortgage Servicing) against the property knmvn as 470 Malbone Street. Brooklyn, NY 11225, Block 1309. Lot l 065 and to mark the land records accordingly.
The legal description of the mortgaged property referred to herein is annexed hereto as Schedule A.
This constitutes the Decision, Order and Judgment of the Court.
~ ({r(r(/l)NJY\ Hon. Menachem M. Mirocznik, JSC
[* 12] 12 of 13 FILED: KINGS COUNTY CLERK 03 1 NYSCEF DOC. NO. 132 6 2026 02: 52 PM INDEX NO. 510361/2016 RECEIVED NYSCEF: 03/16/ 2026
Schedule A
~hibit A Legal oeurlptton
AD i.Mt 4ffl"t,dn pl11t, p,i:l,'!j! N r~'ltCill i,f re:i! propnty :.kWdcll .u:d ot;1flr, in the C.:~ cfli,Jn~ nor~ ,'tf?.n1otl)n, City a:· ."' ·• ,,: "'··· · '._ ·· krmwn 11nd dl!.'flr,natd II!!: Uiiil Nt.1. 470•2 m, ~cti>r.uicm nrC,m,:l,')mfr1ii;im 1 ., · ·'"·· ;·. ,.· .. •,,!) of of I.he New Vurl. fttel tRipC!~}' Liw, mno::d lVi:9-S :lt'Ult!t!ttl In the Office the City Regis)l;IT. kJr.-Jl7 j,~ 1ui9195 Ir. 1l11a1
.. : •:'. . :im,·cv:1,--,i;xa Ill ?'1,.,s,c 20'13 ~\'l:'rulg th&pf
T¢gi!thi:r with M undivided 2J)Sfi pt:~r.ent rm~ in me OOll1moR e1Gffl.cnts oftbe properly de!!rnlmi in 1,iud ~ebratitl!l t!te:rdn11fler ea.iled the "Commun E!tmeurs"):
St.id Unit being known and clcs1gn0;t1;1d a Section 5 B-191,k l:309 l-Ot J06$ OD th.e Tu M11.p ofOn, !liiro>1-gli orn,, > .. · : .· ;f Ji,lei~ !1c:scrlhd -'1 f'rtli0w1,;
AU tbt i:,ertain phrt, peke or pam-1 of Jt.,td, ~tmtt.e., ]ying atid bo!.ng in th1 Barough. Qf BrooklyJ:1 0 CO\Ul1JI of;;:_•:~1;.~, . , ' City 1ll\d Sb>t-: ~•t~ew York. bo1111di'id and dc:M:fibed u toUowu
R~nll'IA :1.t :'I f1
Running tbc11ce westerly aloDg the nonbotly side of Malbo~ S1rcct, l~ foct 1/8- inch ~ tbs ((U?n!t f;..rrfrttd t,y 1?:.t l~laf'lr:(;tki."I of me ni~rtbi:rly 11[.ck of Mnlbo.1111: ~et wlth tho nc,fthea!Jtu:ty lidl:: of Cfove ~oad 1 Thmco non~w~y along n,e a . ~ J : y 1ldt: otC1ovoRoa.d'. 170 feet 3 mqhc;~
Th~ce ~1y paralle! wi\h Maltitmc Strte(. .334 !wt 6 l~ mc.hu:
Th$Joe sou'therly ,t tight angJo., to Malbono Sireiet. t27 feet: 9 1 ux.bes tt> f1. t1le point at pl.oc¢ of BeglnninS,-
Tax ld; !!-ll09-106$
f()t .Lfl.ml10'1lon pvrpOJQ oney - propeny a/k/11. 470 Ma)booe St Brooklyn, ~ l 1225-3200
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