BOARD OF MANAGERS OF NOLITA PLACE CONDOMINIUM v. TEXAS ENTERTAINMENT LLC (2023)

Order and judgment (one paper), Supreme Court, New York County (Francis A. Kahn, III, J.), entered October 26, 2022, which, insofar as appealed from as limited by the briefs, denied defendant's cross-motion to reject the Referee's report, to dismiss the complaint for failure to submit admissible evidence, and, in the alternative, to vacate the Referee's report for failure to conduct a hearing, unanimously affirmed, with costs.  Appeal from order, same court and Justice, entered January 6, 2022, which, insofar as appealed from as limited by the briefs, denied defendant's motion to require the Referee to hold an in person/virtual hearing with live testimony, unanimously dismissed, without costs, as subsumed in the appeal from the order and judgment.

Absent the existence of a relevant factual dispute a referee is not required to hold a hearing prior to issuing a report in every case (see Dune Deck Owners Corp. v. J.J. & P. Assoc. Corp., 85 A.D.3d 1091, 926 N.Y.S.2d 318 [2d Dept. 2011]).  Plaintiff's submissions, which included an affidavit from the managing agent's employee (the Plattner affidavit), the condominium bylaws, the condominium ledger, copies of a partial stop work order and violations issued by the New York City Department of Buildings against the subject unit, an expeditor invoice and check made payable to the expediter to clear violations, and an affirmation by the Board's counsel as to legal fees, accompanied by invoices and attorney biographies, were sufficient upon which to compute the amount due plaintiff.  Even if the Referee should have held a hearing before issuing the report, the failure to hold a hearing was harmless, as defendant was afforded sufficient opportunity to dispute the findings by presenting evidence in opposition to the motion seeking to confirm that report (see NYCTL 1998–2 Trust v. Bethelite Community Baptist Church, 192 A.D.3d 429, 430, 139 N.Y.S.3d 796 [1st Dept. 2021], lv denied 37 N.Y.3d 906, 2021 WL 4098419 [2021]).  Defendant's conclusory claims failed to raise an issue of fact or warrant a hearing (see Board of Mgrs. of the 411 E. 53rd St. Condominium v. Faracco, 202 A.D.3d 431, 432, 158 N.Y.S.3d 572 [1st Dept. 2022]).

A proper foundation was provided for consideration of the records introduced by the Board (see Board of Mgrs. of Ruppert Yorkville Towers Condominium v. Hayden, 169 A.D.3d 569, 570, 94 N.Y.S.3d 59 [1st Dept. 2019]), as the Plattner affidavit properly laid an evidentiary foundation for admission of those documents as business records pursuant to CPLR 4518.  Supreme Court's award of attorneys’ fees without a hearing was also supported by admissible evidence, as the affirmation provided by plaintiff's counsel attached copies of the legal bills themselves, which show “the date, amount of time, nature of tasks performed, the persons performing them, and the rates charged” for each of the legal professionals who have worked on this matter (see Board of Managers of 411 East 53rd Street Condominium, 202 A.D.3d at 431–432, 158 N.Y.S.3d 572).