US BANK NATIONAL ASSOCIATION v. VENTO (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jason Vento appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Queens County (Scott Dunn, J.), entered February 26, 2025.  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 judgment 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 reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied, so much of the referee's report as determined that the mortgaged premises should be sold in one parcel is rejected, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.

In August 2009, the plaintiff commenced this action against, among others, the defendant Jason Vento (hereinafter the defendant) to foreclose a mortgage on certain real property located in Queens.  The plaintiff moved, inter alia, for an order of reference.  By order dated May 16, 2017, the Supreme Court granted the plaintiff's motion and appointed a referee to compute the amount due to the plaintiff.  Subsequently, in an order dated February 6, 2024, the court appointed a substitute referee.

Thereafter, the plaintiff moved, among other things, to confirm the referee's report and for a judgment of foreclosure and sale.  The defendant opposed the motion.  By order and judgment of foreclosure and sale entered February 26, 2025, the Supreme Court, inter alia, granted those branches of the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property.  The defendant appeals.

Contrary to the defendant's contention, the referee's failure to provide notice or hold a hearing on the issues addressed in the referee's report did not warrant denial of that branch of the plaintiff's motion which was to confirm the referee's report.  “[A]s long as a defendant is not prejudiced by the inability to submit evidence directly to the referee, a referee's failure to notify a defendant and hold a hearing is not, by itself, a basis to reverse a judgment of foreclosure and sale and remit the matter for a hearing and a new determination of amounts owed” (Bank of N.Y. Mellon v Viola, 181 AD3d 767, 770;  see Excel Capital Group Corp. v 225 Ross St. Realty, Inc., 165 AD3d 1233, 1236).  “Where, as here, a defendant had an opportunity to raise questions and submit evidence directly to the Supreme Court, which evidence could be considered by the court in determining whether to confirm the referee's report, the defendant is not prejudiced by any error in failing to hold a hearing” (Bank of N.Y. Mellon v Viola, 181 AD3d at 770;  see Wells Fargo Bank, N.A. v O'Brien, 234 AD3d 730, 732).

Nevertheless, the Supreme Court should not have confirmed the referee's report.  “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” (U.S. Bank N.A. v Winnie Realty Group, LLC, 237 AD3d 871, 873 [internal quotation marks omitted] ).  “The referee's findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute” (id. [internal quotation marks omitted] ).  However, “[a] referee's findings should not be deemed substantially supported by the record when those findings are based upon inadmissible evidence” (id.).

Here, contrary to the defendant's contention, the referee's computation of the amount due to the plaintiff was not based upon inadmissible evidence, and the referee's findings in that regard were substantially supported by the record (cf.  Wells Fargo Bank, N.A. v Laronga, 219 AD3d 1559, 1561).  However, because the referee failed to identify any documents or other sources upon which he based his finding that the mortgaged premises should be sold in one parcel, that finding is unsupported by the record (see Ridgewood Sav. Bank v Kapoor, 222 AD3d 797, 799).

Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale, and we remit the matter to the Supreme Court, Queens County, for a new determination as to whether the mortgaged premises can be sold in parcels.

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.