Opinion
July 10, 1990
Appeal from the Supreme Court, New York County (David Saxe, J.).
It is not contested that plaintiff bank loaned H. Frenkel, Ltd. $212,000; that H. Frenkel, Ltd. gave back a commercial note therefor; and that the individual defendants gave personal guarantees to the bank to cover the debts owed by H. Frenkel, Ltd. The defendants defaulted on the note and the guarantees. Thereafter plaintiff moved for summary judgment in lieu of complaint.
Defendants contested service of the summons and motion for summary judgment in lieu of complaint. A traverse hearing was held before a Referee, whose finding in favor of plaintiff's claim of service was confirmed. Defendants contest that confirmation on appeal. "The report of a referee should be confirmed if the findings therein are supported by the record." (Namer v. 152-54-56 W. 15th St. Realty Corp., 108 A.D.2d 705.) "Generally, New York courts will look with favor upon a Referee's report, inasmuch as the Referee, as trier of fact, is considered to be in the best position to determine the issues presented." (Matter of Holy Spirit Assn. v. Tax Commn., 81 A.D.2d 64, 70-71, revd on other grounds 55 N.Y.2d 512.) The evidence presented at the traverse hearing, consisting of the testimony, affidavits of service and logbook entries of the process server, along with the testimony of defendant Tobi Frenkel, support the determination of the Referee and its confirmation by the IAS court.
Defendants' other defenses raised with respect to the guarantees and the underlying debt have been reviewed and found to be meritless.
Concur — Kupferman, J.P., Sullivan, Asch, Wallach and Smith, JJ.