BARRETT v. STONE (1997)

Order, Supreme Court, New York County (Walter Tolub, J.), entered June 26, 1996, which, inter alia, denied defendant's motion to vacate a prior installment payment order in favor of plaintiff, unanimously affirmed, with costs.

 Defendant's motion to vacate the installment payment order was held in abeyance pending receipt of a Special Referee's report “on the issue of defendant's income and assets”.   The Special Referee's report purported to do no more than recite the “essential testimony” of defendant, the only witness called at the hearing, that he has had no employment or income since being fired from his job shortly after issuance of the installment payment order, and that his wife owns their home.   The motion court confirmed this report but denied vacatur of the installment payment order, finding it “suspect” that defendant has no assets, “incredible” that he had not worked since losing his job, and “unbelievable” that he lacked the means to pay the $1500 a month installment payment order.   We affirm.   Under CPLR 4403, the motion court could, with respect to the Special Referee's report, “make new findings with or without taking additional testimony”.   With the benefit of the hearing transcript, the motion court simply made findings as to defendant's credibility that the Special Referee did not purport to make.   Upon review of that transcript-wherein defendant claimed that he is entirely dependent upon his wife's $40,000 a year salary as a school teacher for payment of his living expenses but disclaimed knowledge as to how his wife is able to maintain their home in Connecticut, the amount of the mortgage on his home and the identity of the mortgagee, the sources of income he admittedly earned in the same year as the judgment sought to be enforced was entered, when he last paid his attorney and the amount thereof, and whether his accountant had forwarded his recent tax returns to him- we see no reason to disturb those findings.

MEMORANDUM DECISION.