BANK OF NEW YORK MELLON v. Stewart Title Insurance Company, Respondent.

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Supreme Court, Appellate Division, Second Department, New York.

BANK OF NEW YORK MELLON, etc., Appellant, v. Gitit GRAFFI, et al., Defendants, Stewart Title Insurance Company, Respondent.

2017–07882

Decided: May 22, 2019

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ. Stern & Eisenberg, P.C., Depew, N.Y. (Anthony P. Scali and Stacey Weisblatt of counsel), for appellant. Thomas G. Sherwood, LLC, Garden City, N.Y. (James P. Truitt III and Amy E. Abbandondelo of counsel), for respondent.

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to foreclose a mortgage given by the defendant Gitit Graffi as security for a note in the sum of $ 372,000.  Following the issuance of an order of reference, the referee issued a report finding that the plaintiff was due the amount of $ 741,491.83, inclusive of a principal balance of $ 365,794.39.  The plaintiff moved to confirm the referee's report, for a judgment of foreclosure and sale, and for an award of attorney's fees (see RPAPL 1351;  CPLR 4403).  The defendant Stewart Title Insurance Company (hereinafter Stewart) opposed the motion.  By order dated May 11, 2017, the Supreme Court granted the motion to the extent of granting a judgment of foreclosure and sale and confirming the referee's report, “with the exception that plaintiff's request for default interest, initial escrow balance, late charges, insurance payments, tax payments, property preservation costs, fees and disbursements and attorney's fees, is denied.”  The plaintiff appeals.

“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” (Citimortgage, Inc. v. Kidd, 148 A.D.3d 767, 768, 49 N.Y.S.3d 482;  see Excel Capital Group Corp. v. 225 Ross St. Realty, Inc., 165 A.D.3d 1233, 1236–1237, 87 N.Y.S.3d 604;  Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 630, 980 N.Y.S.2d 475;  CPLR 4403).  “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” (Flagstar Bank, F.S.B. v. Konig, 153 A.D.3d 790, 790–791, 60 N.Y.S.3d 360;  see 33–37 Farrington, LLC v. Global Universal Group, Ltd., 165 A.D.3d 1018, 1019–1020, 87 N.Y.S.3d 302;  Nationstar Mtge., LLC v. Vordermeier, 165 A.D.3d 822, 823, 86 N.Y.S.3d 191;  41st Rd. Props., LLC v. Wang Real Prop., LLC, 164 A.D.3d 455, 459, 83 N.Y.S.3d 510).

Contrary to the plaintiff's contention, Stewart may challenge the referee's findings based on its status as a subordinate mortgagee (see RPAPL 1351[3];  1354[3];  1361[2] ).

In view of the lengthy delay in foreclosing the subject mortgage, we agree with the Supreme Court's determination that the plaintiff should not recover any default interest or late charges (see BAC Home Loans Servicing, L.P. v. Jackson, 159 A.D.3d 861, 863, 74 N.Y.S.3d 59;  Greenpoint Mtge. Corp. v. Lamberti, 155 A.D.3d 1004, 1005, 66 N.Y.S.3d 32;  Deutsche Bank Trust Co., Ams. v. Stathakis, 90 A.D.3d 983, 984–985, 935 N.Y.S.2d 651;  Dayan v. York, 51 A.D.3d 964, 965, 859 N.Y.S.2d 673).

We also agree with the Supreme Court's denial of the plaintiff's request for other property-related expenses and escrow funds, as the request was supported only by the conclusory, unsubstantiated affidavit of a representative of the plaintiff's loan servicer without any supporting documentation (see Citimortgage, Inc. v. Kidd, 148 A.D.3d at 768–769, 49 N.Y.S.3d 482).

We also agree with the Supreme Court's denial of the plaintiff's request for attorney's fees, as the plaintiff failed to substantiate the performance of certain services, to establish the time and rate for the services, and to demonstrate the reasonableness of the attorney's fees requested (see Beece v. Beece, 289 A.D.2d 352, 353, 734 N.Y.S.2d 606;  Gordon v. Gordon, 202 A.D.2d 634, 609 N.Y.S.2d 95;  cf. Vigo v. 501 Second St. Holding Corp., 121 A.D.3d 778, 994 N.Y.S.2d 354;  see generally Citicorp Trust Bank, FSB v. Vidaurre, 155 A.D.3d 934, 935–936, 65 N.Y.S.3d 237;  SO/Bluestar, LLC v. Canarsie Hotel Corp., 33 A.D.3d 986, 988, 825 N.Y.S.2d 80).

MASTRO, J.P., CHAMBERS, MILLER and CHRISTOPHER, JJ., concur.

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