KAHAN v. Henry Kohn, et al., third-party defendants-respondents. (2005)

In an action, inter alia, to foreclose a mortgage, the defendants Ilya Sulaymanov and Vyachslav Sulaymanov appeal from an order of the Supreme Court, Kings County (Lodato, J.H.O.), dated February 19, 2004, which denied their cross motion pursuant to CPLR 4403 and 4404(b) to re-open the trial and to set aside a report of the same court (Sherman J.H.O), dated November 26, 2002, which, after a nonjury trial, inter alia, found in favor of the plaintiff Leslie Kahan and against them and ordered a foreclosure sale on the subject property.

ORDERED that the order is affirmed, with one bill of costs.

 The cross motion of the defendants Ilya Sulaymanov and Vyachslav Sulaymanov, inter alia, to set aside the report of the trial court was untimely since it was made nearly six months after the report was filed and four months after issuance of the resulting decision (see CPLR 4405).

 In any event, “[a] decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (Ardmar Realty Co. v. Building Inspector of Vil. of Tuckahoe, 5 A.D.3d 517, 518, 773 N.Y.S.2d 129).   Where, as here, findings of fact rest in large measure on consideration relating to credibility of witnesses (see Bucci v. Bucci, 231 A.D.2d 665, 647 N.Y.S.2d 978), we find no reason to disturb them.

The appellants' remaining contentions are without merit.