33-37 Farrington, LLC v Global Universal Group, Ltd., 2018 NY Slip Op 07081 [2d Dept. 2018]
“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” (Flagstar Bank, F.S.B. v Konig, 153 AD3d 790, 790-791; see Thomas v Thomas, 21 AD3d 949, 949). Here, the Referee’s findings with regard to the amount due under the note and mortgage are supported by the record. Any error in the admission of hearsay testimony at the hearing was harmless (see CPLR 2002; Barracato v Camp Bauman Buses, 217 AD2d 677, 678). Accordingly, we agree with the Supreme Court’s determination granting SDF’s motion to confirm the Referee’s report.
Excel Capital Group Corp. v 225 Ross St. Realty, Inc.,
2018 NY Slip Op 07291 [2d Dept. 2018]
The Supreme Court, as the ultimate arbiter of the dispute with the power to reject the referee’s report and make new findings (seeCPLR 4403), considered the defendant’s evidence and correctly concluded that the defendant’s contention was without merit (see Deutsche Bank Natl. Trust Co. v Zlotoff, 77 AD3d 702; Adelman v Fremd, 234 AD2d 488; Stein v American Mtge. Banking, 216 AD2d 458; Shultis v Woodstock Land Dev. Assoc., 195 AD2d 677; cf. Aurora Loan Servs., LLC v Taylor, 114 AD3d at 629-630; Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282).
CPLR R. 4403 Motion for new trial or to confirm or reject or grant other relief after reference to report or verdict of advisory jury
Trizechahn, Inc. v Timbil Chiller Maintenance Corp., 2009 NY Slip Op 50634(U) (Sup. Ct. NY, 2009)
While, on a motion addressed to a referee's report, CPLR 4403
permits a court to take additional testimony and make new findings, and
fairness may perhaps dictate that GE should have promptly put Timbil on
notice that GE wished to have counsel assigned to represent it, the
First Department has ruled in Hexcel Corporation v. Hercules
Incorporated, 291 AD2d 222 (2002), lv. to ap. den. 98 NY2d 607 (2002),
that the failure to raise a defense before a referee results in a
waiver of the claim. There, the defendant asserted that the plaintiff's
claim was subject to a $2,000,000 deductible, but the court held that
defendant, "by not raising its claim of a [*3]$2
million deductible before the Special Referee, has waived the claim"
(p. 223). The asserted inadvertence of counsel to raise the issue does
not warrant a contrary result.
Nor does the fact that GE did not send a tender demand until
March 10, 2006, or that in its letter of August 17, 2006 it stated that
it only sought fees from the said date of tender, bar it from later
seeking to enforce its entire contractual indemnity rights. In Grimes
v. Pyramid Companies of Onondaga, 237 AD2d 940, 941 (4th Dept. 1997),
it was held that the lower court "erred in limiting Pyramid's
entitlement to recovery of attorney's fees … to those fees incurred
'from the time Pyramid tendered its defense' … (and that) Pyramid is
entitled to recover all reasonable attorney's fees incurred in defense of plaintiff's action" (emphasis in original).
Thus, in light of the foregoing, the motion of GE to conform the
report of the referee is granted with respect to the amount of
attorney's fees to which it is entitled, and the cross-motion of Timbil
to disaffirm is denied. Since I find that, pursuant to CPLR 5001(b),
plaintiff is entitled to interest from April 1, 2006 (a reasonable
intermediate date), the Clerk shall enter judgment in favor of GE and
against Timbil for $95,917.15, plus interest thereon from said date.
The bold is mine.