Slater v. Links at North Hills

• Decision Date: 01 June 1999
• Citation: 262 AD2d 299,691 N.Y.S.2d 101
• Parties: Stuart SLATER, et al., appellants, v. LINKS AT NORTH HILLS, et al., respondents.
• Court: New York Supreme Court — Appellate Division

Page 101

691 N.Y.S.2d 101

Stuart SLATER, et al., appellants, v. LINKS AT NORTH HILLS, et al., respondents.

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

June 1, 1999.

Bryan J. Holzberg, Melville, N.Y., for appellants.

Berkman, Henoch, Peterson & Peddy, P.C., Garden City, N.Y. (Peter Sullivan of counsel), for respondents.

GUY JAMES MANGANO, P.J., WILLIAM D. FRIEDMANN, LEO F. McGINITY and SANDRA J. FEUERSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Lockman, J.), entered May 19, 1998, which, inter alia, granted the defendants' motion to confirm the report of a referee, who, after a hearing, found that the plaintiffs had authorized their attorney to accept the sum of $55,000 in settlement of the action.

ORDERED that the order is affirmed, with costs.

The determination of a referee appointed to hear and report is entitled to great weight, particularly where conflicting testimony and matters of credibility are at issue, since the referee, as the trier of fact, had the opportunity to see and hear the witnesses and to observe them on the stand (see, e.g., Frater v. Lavine, 229 A.D.2d 564, 646 N.Y.S.2d 46; Schwartz v. Meisner, 198 A.D.2d 634, 603 N.Y.S.2d 626; Bellnier v. Bellnier, 158 A.D.2d 947, 948, 550 N.Y.S.2d 963). The findings of such a referee will not be disturbed if supported by the evidence in the record (see, Kaplan v. Einy, 209 A.D.2d 248, 251, 618 N.Y.S.2d 777; Namer v. 152-54-56 W. 15th St. Realty Corp., 108 A.D.2d 705, 485 N.Y.S.2d 1013; see also, Freedman v. Freedman, 211 A.D.2d 580, 621 N.Y.S.2d 610).

The hearing record amply supports the referee's conclusion that, at least by May 15, 1997, both plaintiffs had given their attorney authority to accept $55,000 in settlement of their action. In addition, both plaintiffs testified at the hearing that after a settlement conference on May 6 1997, they had told the defendant's counsel that their lawyer would "get back" to him with their response to the defendants' final settlement offer. The plaintiffs are therefore bound by the acts of their admitted agent taken on their behalf within the scope of his actual authority, particularly where, as here, the defendants withdrew a pending appeal in detrimental reliance upon the plaintiffs' counsel's representation that the case was settled (see, e.g., Loschiavo v. Port Auth., 58 N.Y.2d 1040, 462 N.Y.S.2d 440, ...