BANK TRUST v. RAO (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Nicholas R. Rao appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Stacy D. Bennett, J.), entered June 6, 2024.  The order and judgment of foreclosure and sale, insofar as appealed from, granted those branches of the plaintiff's motion which were to confirm a referee's report and for a judgement of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.

In February 2023, the plaintiff commenced this action against the defendant Nicholas R. Rao (hereinafter the defendant), among others, to foreclose a mortgage encumbering real property located in Long Beach.  After the defendant interposed an answer, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  In an order dated December 21, 2023, the Supreme Court, among other things, granted the plaintiff's motion and appointed a referee to compute the amount due to the plaintiff.  In April 2024, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale.  The defendant opposed the motion.  In an order and judgment of foreclosure and sale entered June 6, 2024, the court, among other things, granted those branches of the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property.  The defendant appeals.

The Supreme Court has the authority to engage a referee to compute and report the amount due under a mortgage (see RPAPL 1321[1];  U.S. Bank N.A. v. Mahram, 230 A.D.3d 1265, 1266, 218 N.Y.S.3d 448).  “An order of reference ‘may specify or limit the powers of the referee and the time for the filing of his [or her] report and may fix a time and place for the hearing’ ” (U.S. Bank N.A. v. Mahram, 230 A.D.3d at 1266, 218 N.Y.S.3d 448 [internal quotation marks omitted], quoting CPLR 4311;  see Countrywide Home Loans, Inc. v. Hershkop, 188 A.D.3d 1148, 1149, 132 N.Y.S.3d 785).  In cases involving references to report, the court is the ultimate arbiter of the dispute and has the power to reject the referee's report and make new findings (see CPLR 4403;  U.S. Bank N.A. v. Mahram, 230 A.D.3d at 1266, 218 N.Y.S.3d 448).  Here, the defendant was served with the referee's proposed report and was afforded the opportunity to serve objections thereto.  The defendant was advised that the referee would compute the amount due to the plaintiff on submission if the defendant failed to serve objections.  The defendant did not request a hearing at that time or serve objections to the proposed report.  Therefore, the referee was not required to hold a hearing (see U.S. Bank N.A. v. Mahram, 230 A.D.3d at 1266, 218 N.Y.S.3d 448).  Moreover, contrary to the defendant's contention, the referee's report was substantially supported by the record (see U.S. Bank N.A. v. Haber, 230 A.D.3d 530, 533, 216 N.Y.S.3d 257;  Deutsche Bank Natl. Trust Co. v. Wentworth, 211 A.D.3d 684, 688, 181 N.Y.S.3d 99).

BARROS, J.P., CHAMBERS, WARHIT and GOLIA, JJ., concur.