LORETO LLC LLC v. WELLS FARGO BANK 2007 C5 LLC (2017)

Defendant, Wells Fargo Bank, N.A., as Trustee for the Registered Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2007-C5, moves for an order pursuant to CPLR 4403 confirming in part and rejecting in part the preliminary report of the Referee in this action. Defendant, Timothy Foster, Receiver, cross moves for an order pursuant to CPLR 4403 rejecting in part the preliminary report of the Referee in this action.

CPLR 4403 states:

Upon the motion of any party or on his own initiative, the judge required to decide the issue may confirm or reject, in whole or in part, the verdict of an advisory jury or the report of a referee to report; may make new findings with or without taking additional testimony; and may order a new trial or hearing.

In his report, the Referee correctly noted that Loreto, Dursi, and the Estate of Ray raised many arguments previously addressed by the Court. To the extent the Referee's Report rejected those arguments, the Report is confirmed. Likewise, the Referee's Report is confirmed to the extent it finds that the calculation of any sums due under the Intervest debt should be consistent with the Court's reliance on the submission and computation contained in Wells Fargo's March 4, 2016 memorandum of law referenced in the Court's Decision. These matters have previously been determined by the Court, and the Referee should not reassess them.

The Referee's Report also recommends a hearing on the amounts due to Wells Fargo under the Order. Both Wells Fargo and Foster seek an order rejecting the Referee's Report to this extent. The Supreme Court is “the ultimate arbiter of the dispute” and has “the power to reject the Referee's report and make new findings.” Federal Deposit Ins. Corp. v. 65 Lenox Rd. Owners Corp., 270 AD2d 303, 304 (2d Dept. 2000). “Generally, a referee's report 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.” Doe v. Yisroal, 131 AD3d 1097, 1098 (2d Dept. 2015).

Here, the circumstances presented warrant rejecting that portion of the Referee's report that seeks to conduct a hearing on the amounts due to Wells Fargo. The Receiver in this matter was appointed more than seven years ago, on June 22, 2009. The Receiver has provided monthly reports since then, and no one has questioned the Receiver's action over the extended history of his service in this action. The Receiver has participated in discovery in this action, and there is simply no basis at this stage in the litigation to require discovery that has already been, or could have been, had in this matter. No party has challenged the Receiver's actions during the pendency of this action, and a reasonable basis to do so at this juncture is not presented.

In his cross motion, the Receiver notes that Loreto requested several items on March 22, 2013: documents reflecting the rents collected during the receivership; documents, correspondence, communications, and receipts showing expenses that have been paid during the receivership; and documents, correspondence, check registers, rent rolls, and records of payments remitted from any funds collected from the rents received from the property leases. The Receiver provided responsive documents. The Receiver also, at the request of Loreto's counsel, made a supplemental production on July 15, 2014. Another supplemental production was made on May 11, 2015. Monthly financial summaries have been provided to the Court. No additional requests for information from the Receiver have been made during this litigation.

Accordingly, the Court finds that there is no basis to allow for the broad discovery sought in an effort to revisit discovery in this matter and delay these proceedings, particularly where the documents are in the parties' possession or were never requested of the Receiver during the many years this litigation has been pending.

The motion to reject that portion of the Referee's report recommending a hearing on the amounts due is granted.

Signed at Rochester, New York this 31st day of March, 2017.

Rosenbaum, J.