Opinion
June 17, 1996
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
Contrary to the plaintiff's contention, the December 4, 1981, deed was properly reformed to reflect that the defendants Eugene Messina and Patrick Franzese each received a 44.4% interest and the plaintiff received an 11.2% interest in the property conveyed. The record demonstrates by "clear, positive and convincing evidence" (Amend v. Hurley, 293 N.Y. 587, 595; see also, Backer Mgt. Corp. v. Acme Quilting Co., 46 N.Y.2d 211, 219-220) that this was the intent of the grantor and the grantees and that the mistake was "'in the reduction of [the deed] to writing, [a] mistake of the scrivener'" (Harris v. Uhlendorf, 24 N.Y.2d 463, 467, quoting Born v. Schrenkeisen, 110 N.Y. 55, 59; see also, Hart v. Blabey, 287 N.Y. 257, 262).
The Referee did not exceed the scope of his reference. Where a Referee's reference is to hear and report on an issue, such reference "makes the referee a kind of assistant to the court; the referee conducts a hearing and reports his findings and conclusions back to the court" (Seigel, N.Y. Prac § 379, at 571 [2d ed]; see also, CPLR 4212, 4320 [a]).
The plaintiff's remaining contentions are either without merit or are not properly before this Court because they were raised for the first time in her reply brief (see, State Farm Fire Cas. Co. v. LiMauro, 103 A.D.2d 514, 521-522, affd 65 N.Y.2d 369). Miller, J.P., Copertino, Santucci and Altman, JJ., concur.