Opinion
2018–01243, 2018–08310 Index No. 7337/15
02-09-2022
HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent, v. Daniel L. SHARON, appellant, et al., defendants.
Charles Wallshein, Melville, NY, for appellant. Hogan Lovells U.S. LLP (Reed Smith LLP, New York, N.Y. [Andrew B. Messite and Joseph S. Jacobs ], of counsel), for respondent.
Charles Wallshein, Melville, NY, for appellant.
Hogan Lovells U.S. LLP (Reed Smith LLP, New York, N.Y. [Andrew B. Messite and Joseph S. Jacobs ], of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA LINDA, CHRISTOPHER, LARA J. GENOVESI, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Daniel L. Sharon appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered September 15, 2017, and (2) an order and judgment of foreclosure and sale (one paper) of the same court, entered April 30, 2018. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Daniel L. Sharon, to strike his answer, and for an order of reference. The order and judgment of foreclosure and sale, insofar as appealed from, granted the plaintiff's motion 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 appeal from the order is dismissed; and it is further,
ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied, the referee's report is rejected, and the matter is remitted to the Supreme Court, Nassau County, for a new report computing the amount due to the plaintiff in accordance herewith; and it is further,
ORDERED that one bill of costs is awarded to the defendant Daniel L. Sharon.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1] ).
In August 2015, the plaintiff commenced this action against the defendant Daniel L. Sharon (hereinafter the defendant), among others, to foreclose the subject mortgage, alleging that the defendant defaulted on mortgage payments due July 1, 2010, and thereafter. The defendant interposed an answer, raising affirmative defenses and asserting counterclaims. In an order entered September 15, 2017, the Supreme Court granted the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference, and appointed a referee to compute the amount due.
The plaintiff subsequently moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale entered April 30, 2018, the Supreme Court, among other things, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, 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. Cherestal, 178 A.D.3d 680, 682, 113 N.Y.S.3d 206 ). "The referee's findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute" ( Citimortgage, Inc. v. Kidd, 148 A.D.3d 767, 768, 49 N.Y.S.3d 482 ; see Nationstar Mtge., LLC v. Durane–Bolivard, 175 A.D.3d 1308, 1310, 109 N.Y.S.3d 99 ).
Here, as the defendant correctly contends, the affidavit of the plaintiff's servicing agent, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, "constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records he purportedly relied upon in making his calculations" ( Nationstar Mtge., LLC v. Cavallaro, 181 A.D.3d 688, 689, 117 N.Y.S.3d 866 ; see generally Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 208–209, 97 N.Y.S.3d 286 ). Thus, the referee's findings with respect to the total amount due upon the mortgage were not substantially supported by the record (see Wilmington Sav. Fund Socy., FSB v. Isom, 190 A.D.3d 786, 135 N.Y.S.3d 863 ; Nationstar Mtge., LLC v. Cavallaro, 181 A.D.3d at 689, 117 N.Y.S.3d 866 ; U.S. Bank N.A. v. Calabro, 175 A.D.3d 1451, 1452, 109 N.Y.S.3d 126 ; Citimortgage, Inc. v. Kidd, 148 A.D.3d at 768–769, 49 N.Y.S.3d 482 ). 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, and we remit the matter to the Supreme Court, Nassau County, for a new report computing the amount due to the plaintiff in accordance herewith (see e.g. IndyMac Fed. Bank, FSB v. Vantassell, 187 A.D.3d 725, 133 N.Y.S.3d 93 ).
The defendant's remaining contentions either are without merit or need not be reached in light of our determination.
BRATHWAITE NELSON, J.P., RIVERA, CHRISTOPHER and GENOVESI, JJ., concur.