Opinion
No. 27011/09.
2012-09-25
BOARD OF MANAGERS OF BRIGHTWATER TOWERS CONDOMINIUM, Plaintiff, v. Bella LUKASHEVSKAYA; and JPMorgan Chase Bank, N.A., Defendants.
Thomas P. Higgins, Esq., Higgins & Trippett LLP, New York City, Attorneys for Plaintiff. William A. Gogel, Esq., Agulnick & Gogel, LLC, Great Neck, Attorneys for Defendant Lukashevskaya.
Thomas P. Higgins, Esq., Higgins & Trippett LLP, New York City, Attorneys for Plaintiff. William A. Gogel, Esq., Agulnick & Gogel, LLC, Great Neck, Attorneys for Defendant Lukashevskaya.
FRANCOIS A. RIVERA, J.
By notice of motion filed on March 14, 2012, under motion sequence number four, plaintiff Board of Managers of Brightwater Towers Condominium (hereinafter the Board) has moved for an order: (1) confirming in part and disaffirming in part a referee's report pursuant to CPLR 4403; (2) fixing attorney's fees due to the Board; and (3) for a judgment of foreclosure and sale pursuant to RPAPL § 1351.
Defendant Bella Lukashevskaya (Lukashevskaya) has opposed the motion. Defendant JPMorgan has not appeared in the action.
BACKGROUND
The Board manages the affairs of Brightwater Towers Condominium (hereinafter Brightwater) located at 601 Surf Avenue, Brooklyn, New York. Lukashevskaya owns residential unit 15R at Brightwater. On October 26, 2012, the Board commenced the instant action to foreclose upon a condominium common charge lien by filing a summons, complaint and notice of pendency with the Kings County Clerk's office. The common charge lien was filed against unit 15R pursuant to Article 9–B of the Real Property Law (the Condominium Act).
Lukashevskaya defaulted in answering the complaint.
On November 16, 2011, the court appointed Mary Noe, Esq., as referee (hereinafter the referee) to compute the amounts due to the Board under the lien and to ascertain whether the unit should be sold in parcels. The Board submitted affidavits, documents and testimony to the referee and asserts that the amount due to them be computed as $26,573.84 as of January 9, 2012.
The referee filed her sworn report dated January 13, 2012. The referee computed the amount due to the Board for assessments to be $1,103.88, but rejected the Board's request for late fees, bad check charges, additional common charges, legal fees, air conditioning fees and parking fees.
The Board has moved to confirm that part of the referee's report which computed the amount due to the Board for assessments to be $1,103.88 and to disaffirm the rest. The Board, has alleged, among other things, that the referee exceeded the scope of her authority in questioning the validity of the charges that she had disallowed.
MOTION PAPERS
The Board's motion papers consist of a notice of motion, an affirmation of counsel, and twelve annexed exhibits labeled A through L. Exhibit A is the instant summons and complaint and three affidavits of service. Exhibit B is the notice of pendency of action, and three affidavits of service. Exhibit C is the notice of appearance of defendant Lukashevskaya, dated June 24, 2011. Exhibit D is the order of reference and related relief, dated November 16, 2011. Exhibit E is the referee's oath and report of amount due to plaintiff, dated January 13, 2012, and an affidavit of service.Exhibit F is the affidavit of plaintiff of amount due under common charge lien, dated January 9, 2012. Exhibit G is the supplemental affidavit of plaintiff of amounts due under common charge lien, dated January 13, 2012. Exhibit H is the order of this court, dated November 16, 2011, which among other things, appointed a referee to compute. Exhibit I is a portion of Brightwater Towers Condominium's by-laws. Exhibit J are portions of the Declaration showing percentage interest assigned to each parking unit. Exhibit K is the notice of default, dated May 29, 2009. Exhibit L is the judgment of foreclosure and sale.
The Board also submitted a separate supplemental affirmation of Thomas P. Higgins in support of its application for attorneys' fees, and four annexed exhibits labeled A through D. Exhibit A is a copy of Article IX of the by-laws of Brightwater. Exhibit B is Mr. Higgins' resume. Exhibit C is a printout of the breakdown for the work he did for the Board through February 29, 2012. Exhibit D is a printout of the expenses and disbursements through February 1, 2012.
Lukashevskaya opposed the motion with an affirmation of counsel and an annexed copy of the referee's oath and report of the amount due to the Board.
The Board replied with an affirmation of its counsel.
LAW AND APPLICATION
In an action to foreclose a mortgage, RPAPL § 1321 allows the court to assign a referee to compute the amount due to the plaintiff (Bd. of Directors of Hunt Club at Coram Homeowners Ass'n, Inc. v. Hebb, 72 AD3d 997, 999 [2nd Dept 2010] ). A referee's powers and duties cannot go beyond the scope of the order of reference ( seeCPLR 4311; First Data Merch. Services Corp. v. One Solution Corp., 14 AD3d 534, 535 [2nd Dept 2005] ). However, findings of the referee are not final. The Supreme Court has the final decision in the dispute and can confirm or reject the referee's report, and make its own findings ( seeCPLR 4403; Fed. Deposit Ins. Corp. v. 65 Lenox Rd. Owners Corp., 270 A.D.2d 303, 304 [2nd Dept 2000] ).
CPLR 4311 provides that an order of reference shall direct the referee to determine the entire action or specific issues, to report issues, to perform particular acts, or to receive and report evidence only. It may specify or limit the powers of the referee and the time for the filing of his report and may fix a time and place for the hearing.
In this instance, the order of reference directed the referee “to ascertain and compute the amount due to the plaintiff” and “to examine and report whether or not the mortgaged premises should be sold in parcels.” In her report, the referee separately addressed seven charges listed on the Delinquent and Prepaid Report, dated January 9, 2012. The referee computed the assessment charge due to the Board to be $1,103.88. The referee stated that the Board failed to prove the validity of its charge for late fees, bad check charge, additional common charges, legal fees, air conditioning and parking fees.
The report states that she was duly sworn to faithfully discharge her duties as a referee before she proceeded to “consider the testimony.” She did not mention in the report if the testimony she obtained was limited to the affidavits submitted by plaintiff or additional testimony taken. The Board's counsel also stated in paragraph sixteen of his affirmation that the referee was provided “supplemental testimony and documentary support for all of the charges.” He further stated in paragraph twenty that despite the “testimonial evidence” submitted to the referee, the referee only awarded $1,103.88.
The aforementioned three references to testimonial evidence may indicate that testimony was taken before the referee sometime before the referee's report was prepared. Testimony is defined as “evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” Black's Law Dictionary [9th ed 2009][note: on-line version]. It is simply not clear to this Court whether the “testimony” referenced was to the affidavits, or to oral testimony taken by the referee. While, neither the Board nor Lukashevskaya annexed to their motion papers minutes of any testimony heard, the references to “testimony” raised concerns. A referee is empowered to take oral testimony ( seeCPLR 4311). If in fact oral testimony was taken then the record is incomplete, and it would be premature to confirm or reject in whole or in part the referee's report.
Therefore, the Board's motion for an order confirming in part and disaffirming in part a referee's report pursuant to CPLR 4403; fixing attorney's fees due to the Board; and for a judgment of foreclosure and sale pursuant to RPAPL § 1351 is stayed pursuant to CPLR 2201. The movant is directed to remedy the ambiguity in the papers within 30 days of notice of entry by filing with motion support an affidavit of someone with personal knowledge of the matter. In the event the movant fails to remedy the ambiguity within the allotted time the referee's report will be confirmed.
The foregoing constitutes the decision and order of this court.