Opinion
No. 2023-00402 Index No. 13965/09
09-18-2024
U.S. Bank National Association, etc., respondent, v. Jaklin S. Mahram, appellant, et al., defendants.
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for appellant. Friedman Vartolo LLP, New York, NY (Zachary Gold and Stephen Vargas of counsel), for respondent.
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for appellant.
Friedman Vartolo LLP, New York, NY (Zachary Gold and Stephen Vargas of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. JOSEPH J. MALTESE LILLIAN WAN LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Jaklin S. Mahram appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (David P. Sullivan, J.), entered October 20, 2022. The order and judgment of foreclosure and sale, insofar as appealed from, granted those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale, denied the cross-motion of the defendant Jaklin S. Mahram to reject the referee's report and pursuant to CPLR 5001 to toll the accrual of interest, confirmed the referee's report, and directed the sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.
In July 2009, this action was commenced against the defendant Jaklin S. Mahram (hereinafter the defendant), among others, to foreclose a mortgage encumbering real property located in Greenvale. After the defendant interposed an answer, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order entered October 25, 2018, the Supreme Court, among other things, granted the plaintiff's motion and appointed a referee to compute the amount due to the plaintiff. Subsequently, the referee issued a report dated July 16, 2020, computing and ascertaining that the plaintiff was owed the sum of $983,981.62, inclusive of interest from January 1, 2009, to March 9, 2020, and other expenses. The plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale. The defendant opposed the motion and cross-moved to reject the referee's report and to toll the accrual of interest. The court, among other things, granted those branches of the plaintiff's motion, denied the defendant's cross-motion, confirmed the referee's report, and directed the sale of the property. The defendant appeals.
The "Supreme Court has the authority to engage a Referee to compute and report the amount due under a mortgage" (Shultis v Woodstock Land Dev. Assoc., 195 A.D.2d 677, 678, citing RPAPL 1321[1]). "An order of reference 'may specify or limit the powers of the referee and the time for the filing of his [or her] report and may fix a time and place for the hearing'" (Countrywide Home Loans, Inc. v Hershkop, 188 A.D.3d 1148, 1149, quoting CPLR 4311). "In cases involving references to report, the Supreme Court is the ultimate arbiter of the dispute and has the power to reject the referee's report and make new findings" (id.; see CPLR 4403). Here, the defendant was served with the referee's proposed report and was afforded the opportunity to serve objections thereto. The defendant was advised that the referee would compute the amount due to the plaintiff on submission if the defendant failed to serve objections. The defendant did not request a hearing at that time or serve objections to the proposed report. Thus, contrary to the defendant's contention, the referee was not required to hold a computation hearing (see Deutsche Bank Natl. Trust Co. v Wentworth, 211 A.D.3d 684, 687; Bank of Am., N.A. v Barton, 199 A.D.3d 625, 627; Nationstar Mtge., LLC v Paganini, 191 A.D.3d 790, 794). Moreover, contrary to the defendant's contention, the referee's report was substantially supported by the record (see Deutsche Bank Natl. Trust Co. v Wentworth, 211 A.D.3d at 688).
The Supreme Court correctly denied that branch of the defendant's cross-motion which was to toll the accrual of interest based on purported improper delay by the plaintiff in prosecuting this action. The record reflects that the delays in this action were not solely attributable to the plaintiff, and the delays that were attributable to the plaintiff were not so egregious as to warrant the tolling of the accrual of interest (see U.S. Bank N.A. v Ashon, 226 A.D.3d 941, 944; Deutsche Bank Trust Co. Ams. v Gonzales, 215 A.D.3d 636, 639). Moreover, there is no allegation that the plaintiff engaged in any wrongdoing during the prosecution of the action (see U.S. Bank N.A. v Ashon, 226 A.D.3d at 944; Deutsche Bank Trust Co. Ams. v Gonzales, 215 A.D.3d at 639; Atalaya Asset Income Fund II, L.P. v 219 Sagg Main, LLC, 206 A.D.3d 868, 869).
BRATHWAITE NELSON, J.P., MALTESE, WAN and LOVE, JJ., concur.