Wells Fargo Bank, N.A. v. Cherot

• Decision Date: 25 August 2021
• Docket Number: 2019–07731, 2019–10519, (Index 3560/10)
• Citation: 197 A.D.3d 773,150 N.Y.S.3d 597 (Mem)
• Parties: WELLS FARGO BANK, N.A., etc., respondent, v. Nicholas M. CHEROT, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 773

150 N.Y.S.3d 597 (Mem)

WELLS FARGO BANK, N.A., etc., respondent,

v.Nicholas M. CHEROT, appellant, et al., defendant.

2019–07731, 2019–10519, (Index 3560/10)

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

Argued—May 25, 2021

August 25, 2021

Clair & Gjertsen, White Plains, N.Y. (Mary Aufrecht of counsel), for appellant.

Hinshaw & Culbertson, LLP, New York, N.Y. (Matthew Ferlazzo of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Nicholas M. Cherot appeals from (1) an order of the Supreme Court, Westchester County (Kathie E. Davidson, J.), entered April 25, 2019, and (2) an order of the same court entered May 24, 2019. The order entered April 25, 2019, insofar as appealed from, after a nonjury trial, granted the plaintiff's motion pursuant to CPLR 4403 to confirm in part and to disaffirm in part a referee's report and denied the cross motion of the defendant Nicholas M. Cherot pursuant to CPLR 4403 to confirm in part and to disaffirm in part the referee's report. The order entered May 24, 2019, granted the same relief and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.

ORDERED that the appeal from the order entered April 25, 2019, is dismissed, as the portions of the order appealed from were superseded by the order entered May 24, 2019; and it is further,

ORDERED that the order entered May 24, 2019, is affirmed; and it is further,

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

In January 2010, the plaintiff commenced this action against the defendant Nicholas M. Cherot (hereinafter the defendant), among others, to foreclose a mortgage encumbering property in White Plains. After the defendant interposed an answer, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant opposed the motion. In an order dated April 11, 2018, the Supreme Court determined that the plaintiff established its prima facie entitlement to judgment as a matter of law by producing copies of the note, mortgage, and evidence of default, as well as sufficient evidence of its standing to commence the action. Nevertheless, the court denied the plaintiff's motion on the ground that it failed to establish that it complied with the notice requirements of RPAPL 1304, and directed the parties to appear for further proceedings. On July 30, 2018, the parties appeared for a trial before a referee on the issue of the plaintiff's compliance with RPAPL 1304.

On December 21, 2018, the referee issued a report finding that, although the plaintiff established proper mailing of the 90–day notices, it only listed three housing counseling agencies in Westchester County, and therefore failed to comply with RPAPL 1304(2). The plaintiff subsequently moved pursuant to CPLR 4403 to confirm the report in part and to disaffirm in part the report. The defendant opposed the motion and cross-moved to confirm in part and to disaffirm in part the report.

By order entered April 25, 2019, the Supreme Court, among other things, granted the plaintiff's motion and denied the defendant's cross motion. By order entered May 24, 2019, the court granted the same relief and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. The defendant appeals.

CPLR 4403 provides that, "[u]pon the motion of any party ..., the judge required to decide the issue may confirm or reject, in whole or in part, ... the report of a referee to report," and "may make new findings with or without taking additional testimony" ( HSBC Bank USA, N.A. v. Aquaviva, 177 A.D.3d 713, 715, 111 N.Y.S.3d 646, citing JNG Constr., Ltd. v. Roussopoulos, 170 A.D.3d 1136, 1141, 96 N.Y.S.3d 655 ). "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 767, 768, 49 N.Y.S.3d 482 ).

"In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing the witnesses" ( US Bank N.A. v. Cusati, 185 A.D.3d 870, 872, 128 N.Y.S.3d 24 ; Countrywide Home Loans, Inc. v. Gibson, 157 A.D.3d 853, 855, 70 N.Y.S.3d 580 ).

Here, the Supreme Court properly determined that the plaintiff established its strict compliance with RPAPL 1304. "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition...