RUSSELL v. MAIONE (2026)

DECISION & ORDER

In an action, inter alia, for the partition and sale of real property, the defendant appeals from an order of the Supreme Court, Suffolk County (Kathy G. Bergmann, J.), dated February 29, 2024.  The order, insofar as appealed from, upon an order of the same court dated January 30, 2024, in effect, denying the defendant's application to reject a referee's report dated January 4, 2024, and granting the plaintiff's application to confirm the referee's report, directed that the plaintiff's attorney's fees and expenses in the amount of $18,100, that 50% of the referee's fees in the amount of $8,000, that certain rent collected by the defendant in the amount of $10,080, and that 100% of the balance of a certain mechanic's lien in the amount of $44,066.66, be deducted and paid from the defendant's share of the proceeds of the partition sale of the subject real property.

ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order dated February 29, 2024, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In August 2022, the plaintiff commenced this action, inter alia, for the partition and sale of certain real property located in West Islip.  During the relevant time period, the property was owned by the parties, who are siblings, as tenants in common, with the plaintiff holding a two-thirds ownership interest in the property and the defendant holding the remaining one-third interest.  Thereafter, the Supreme Court granted the plaintiff's motion for summary judgment on the cause of action seeking partition and sale of the property, appointed a referee, and directed the referee to sell the property and to make recommendations in the accounting of rents received and expenses borne by the respective parties.  In November 2023, the property was sold to the defendant for the sum of $650,000.

On January 4, 2024, the referee issued a report recommending, inter alia, that the plaintiff's attorney's fees and expenses in the amount of $18,100, that 50% of the referee's fees in the amount of $8,000, that certain rent collected by the defendant in the amount of $10,080, and that 100% of the balance of a mechanic's lien in the amount of $44,066.66, purportedly related to repairs done to the property that were unilaterally contracted for by the defendant, be deducted and paid from the defendant's share of the proceeds of the partition sale of the property.  Thereafter, the defendant, in effect, submitted an application to reject the referee's report, and the plaintiff submitted an application to confirm the referee's report.  In an order dated January 30, 2024, the Supreme Court, in effect, denied the defendant's application and granted the plaintiff's application.  In an order dated February 29, 2024, the court, among other things, directed that the plaintiff's attorney's fees and expenses in the amount of $18,100, that 50% of the referee's fees in the amount of $8,000, that certain rent collected by the defendant in the amount of $10,080, and that 100% of the balance of the mechanic's lien in the amount of $44,066.66, be deducted and paid from the defendant's share of the proceeds of the partition sale of the property.  The defendant appeals.

“[A] referee's findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute” (Ocwen Loan Servicing, LLC v. Coles, 223 A.D.3d 678, 680, 203 N.Y.S.3d 351 [internal quotation marks omitted];  see HSBC Bank USA, N.A. v. Delgado, 211 A.D.3d 920, 921, 181 N.Y.S.3d 286;  Citimortgage, Inc. v. Kidd, 148 A.D.3d 767, 768, 49 N.Y.S.3d 482).  “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” (Citimortgage, Inc. v. Kidd, 148 A.D.3d at 768, 49 N.Y.S.3d 482).  Here, the referee's determination that $10,080 in rent collected by the defendant, and that 100% of the balance of the mechanic's lien, should be deducted and paid from the defendant's share of the proceeds of the partition sale of the property, was substantially supported by the record (see Capili v. Ilagan, 26 A.D.3d 354, 354, 810 N.Y.S.2d 480;  Frater v. Lavine, 229 A.D.2d 564, 646 N.Y.S.2d 46;  Wawrzusin v. Wawrzusin, 212 A.D.2d 779, 623 N.Y.S.2d 255).

“ ‘[P]artition, although statutory (see RPAPL art 9), is equitable in nature, and the court may compel the parties to do equity between themselves when adjusting the distribution of the proceeds of a sale’ ” (Marone v. Marone, 150 A.D.3d 1097, 1097, 52 N.Y.S.3d 661, quoting Koniosis v. Tsororos, 83 A.D.3d 665, 668, 920 N.Y.S.2d 403).  Here, the attorney's fee award in the sum of $18,100, payable from the defendant's share of the proceeds of the partition sale of the property, was equitable and reasonable (see id.).

Contrary to the defendant's contention, under the circumstances, the Supreme Court “properly required each of the parties to pay one half of the referee's fee” (Degliuomini v. Degliuomini, 45 A.D.3d 626, 630, 850 N.Y.S.2d 115;  see H & Y Realty Co. v. Baron, 193 A.D.2d 429, 430, 597 N.Y.S.2d 343).

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Suffolk County, dated February 29, 2024.  By order to show cause dated August 12, 2024, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice (see CPLR 5701).  By decision and order on motion of this Court dated October 2, 2024, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the order to show cause and the papers filed in response thereto, and upon the argument of the appeal, it is

ORDERED that the motion to dismiss the appeal is denied.

GENOVESI, J.P., WAN, VENTURA and QUIRK, JJ., concur.