HSBC Bank USA, Nat'l Ass'n v. Delgado

211 A.D.3d 920

181 N.Y.S.3d 286

HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent,

v.Carlos DELGADO, et al., defendants,KRJPL Properties Management Co., appellant.

2019-14380

Index No. 702039/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 11, 2022

December 21, 2022

The Rosenfeld Law Office, Lawrence, NY (Avi Rosenfeld of counsel), for appellant.

Reed Smith LLP, New York, NY (James N. Faller and Andrew B. Messite of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant KRJPL Properties Management Co. appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Queens County (Robert I. Caloras, J.), entered October 30, 2019. The order and judgment of foreclosure and sale, upon a decision of the same court entered May 14, 2019, inter alia, granted those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, with costs, those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied, the referee's report is rejected, and the matter is remitted to the Supreme Court, Queens County, for a new report computing the amount due to the plaintiff in accordance herewith.

In March 2015, the plaintiff commenced this action against the defendant KRJPL Properties Management Co. (hereinafter the defendant), among others, to foreclose a mortgage on residential property located in Queens. The defendant interposed an answer. In 2016, the Supreme Court granted the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, and appointed a referee to compute the amount due to the plaintiff. After the referee issued a report of the amount due, the plaintiff moved, among other things, to confirm the referee's report and for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale entered October 30, 2019, upon a decision entered May 14, 2019, the court, inter alia, granted those branches of the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property. The defendant appeals.

"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" ( U.S. Bank N.A. v. Sheth, 177 A.D.3d 1018, 1020, 113 N.Y.S.3d 166 [internal quotation marks omitted]; see HSBC Bank USA, N.A. v. Sharon, 202 A.D.3d 764, 766, 158 N.Y.S.3d 834 ). "The referee's findings and recommendations are...