Opinion
2018–05920 2018–09763 2018–09871 Index No. 506559/15
12-16-2020
Matter of PARK RESIDENCE CONDOS, LLC, et al., appellants, v. 348 13TH STREET, LLC, et al., respondents, Jill Simeone, et al., respondents-respondents.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Anna Higgins of counsel), for appellants. Davidoff Hutcher & Citron, LLP, New York, N.Y. (Derek Wolman and Andrew K. Rafalaf of counsel), for respondents-respondents.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Anna Higgins of counsel), for appellants.
Davidoff Hutcher & Citron, LLP, New York, N.Y. (Derek Wolman and Andrew K. Rafalaf of counsel), for respondents-respondents.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.
DECISION & ORDER In a proceeding, inter alia, pursuant to RPAPL 881 for a license to enter the premises of the respondents Jill Simeone and Stephen Kitts for the purpose, among other things, of conducting a preconstruction survey, the petitioners appeal from (1) an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated April 6, 2018, (2) an order of the same court dated July 13, 2018, and (3) a judgment of the same court dated July 18, 2018. The order dated April 6, 2018, granted the motion of the respondents Jill Simeone and Stephen Kitts to confirm a referee's report and denied the petitioners' cross motion to reject that report. The order dated July 13, 2018, inter alia, awarded the respondent Jill Simeone certain attorneys' fees pursuant to the referee's report. The judgment, upon the orders, is in favor of the respondent Jill Simeone and against the petitioners.
ORDERED that the appeals from the orders are dismissed, as the orders were superseded by the judgment; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that on bill of costs is awarded to the respondents Jill Simeone and Stephen Kitts.
RPAPL 881 authorizes a court to issue a license permitting the temporary entrance onto the property of another when necessitated by construction. By order dated October 16, 2015, the Supreme Court, inter alia, granted the petitioners a temporary license pursuant to RPAPL 881 to enter the premises of the respondents Jill Simeone and Stephen Kitts (hereinafter together the respondents), and referred the issue of "whether [the] [p]etitioners' conduct warrants an award of attorneys' fees and if so the amount that should be awarded" to a referee to hear and report. After a hearing, the referee found that the petitioners' conduct warranted an award of attorneys' fees in favor of Simeone, and made a recommendation to the court as to the amount of the award, based on the evidence presented at the hearing. The court, in an order, granted the respondents' motion to confirm the referee's report and denied the petitioners' cross motion to reject the report. The petitioners appeal from a judgment entered upon the order.
"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 A.D.3d 790, 790–791, 60 N.Y.S.3d 360 ; see Minelli Constr. Co., Inc. v. New York City Sch. Constr. Auth. , 167 A.D.3d 593, 593–594, 87 N.Y.S.3d 482 ). "A referee's credibility determinations are entitled to great weight because, as the trier of fact, he or she has the opportunity to see and hear the witnesses and to observe their demeanor" ( Doe v. Yisroel , 131 A.D.3d 1097, 1098, 16 N.Y.S.3d 754 ).
Here, the record substantially supports the referee's recommendation to award attorneys' fees to Simeone (see Matter of Van Dorn Holdings, LLC v. 152 W. 58th Owners Corp. , 149 A.D.3d 518, 519, 52 N.Y.S.3d 316 ; DDG Warren LLC v. Assouline Ritz 1, LLC , 138 A.D.3d 539, 540, 30 N.Y.S.3d 52 ). The petitioners' remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination confirming the referee's report and entering judgment in favor of Simeone and against the petitioners (see CPLR 4403 ).
CHAMBERS, J.P., ROMAN, HINDS–RADIX and DUFFY, JJ., concur.