Opinion
2017–01917 Index No. 19492/12
05-01-2019
REAL ESTATE MORTGAGE NETWORK, INC., Appellant, v. Ernest PRETTO, Respondent, et al., Defendants.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), for appellant.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), for appellant.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Howard G. Lane, J.), entered June 2, 2016. The order denied the plaintiff's motion, inter alia, to confirm a referee's report and for a judgment of foreclosure and sale, without prejudice to renew upon confirmation of the referee's report.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of the plaintiff's motion. The plaintiff commenced this action against the defendant Ernest Pretto (hereinafter the defendant), among others, to foreclose a mortgage on certain property located in Queens. The defendant interposed an answer. In an order dated May 5, 2015, 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. Thereafter, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale. The court denied the motion without prejudice to renew upon confirmation of the referee's report. The plaintiff appeals.
CPLR 4403 authorizes a court to confirm or reject a referee's report and, thereafter, to "render decision directing judgment in the action." There is no requirement under the statute that a motion to confirm a referee's report be made before a motion for a judgment of foreclosure and sale may be brought. Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination on the merits of the plaintiff's motion (see Bank of Am., N.A. v. Lucido, 163 A.D.3d 614, 616, 81 N.Y.S.3d 161 ; Everhome Mtge. Co. v. Berger, 151 A.D.3d 811, 813, 56 N.Y.S.3d 548 ; Downey Sav. & Loan Assn., F.A. v. Aribisala, 147 A.D.3d 911, 912, 47 N.Y.S.3d 413 ).
In light of our determination, we need not address the plaintiff's remaining contention.
RIVERA, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.