Opinion
110715/06.
October 16, 2008.
DECISION AND ORDER
By notice of motion dated September 5, 2008, counsel for defendant, Board of Managers of 200 Riverside Boulevard at Trump Place Condominium ("Board of Managers"), moved for an order 1) confirming the report of Referee Trwin Kahn, Esq.; 2) directing disbursement of the surplus monies in this action for foreclosure and sale of a residential condominium apartment, pursuant to Mr. Kahn's report; and 3) referring this matter to a Special Referee to ascertain and report the amount due to the Board of Managers as and for attorneys fees and disbursements in this action, it. should be noted that by order entered May 29, 2008, this Court confirmed the Report of Sale of Referee Ruth Gursky, Esq. and appointed Mr. Kahn to report on the amount due to the Board of Managers and any other person who may have a lien on surplus monies from the subject sale, and to ascertain the priority of those liens.
Mr. Kahn indicates in his August. 8, 2008 report that this foreclosure and sale action was commenced by the holder of the first, mortgage on the apartment, and that following said sale, surplus monies of $84,972.91 were paid to the Commissioner of Finance of the City of New York. The Board of Managers then filed its claim for surplus monies, based upon unpaid common charges, on October 23, 2007, and defendant, Margarida De Brito, the former owner of the apartment and the holder of the equity of redemption of the mortgaged premises, filed her claim for surplus monies on January 25, 2008. According to Mr. Kahn, although a lien and judgment search disclosed a judgment against De Brito for the amount of $250.00 in favor of defendant, the Commissioner of Jurors, and a judgment against defendant Moline Ng, the mortgagor of the apartment, for the amount of $570.000 plus $158.52 in interest in favor of defendant, the New York City Parking Violations Bureau, neither these defendants nor any other parties filed a notice of claim for the surplus monies in this matter.
Mr. Kahn determined that pursuant to Real Property Law § 339-7, the surplus monies should be paid first, to the Board of Managers in the sum of $11,153.42 in payment of all sums due for unpaid common charges and assessments owed on the subject, apartment. Mr. Kahn also determined that with no other individuals or entities making a claim to any of the surplus monies, the balance, after payment of all sums due to the Board of Managers, including legal fees and disbursements, should be released to Margarida De Brito. Mr. Kahn noted that he did not receive any objections to his report, nor did he get any requests for a formal hearing.
Although Mr. Kahn indicates in Paragraph 17 of his report that payment, should be made to the "Board of Managers of Evans View Condominium," this is clearly an error and it should read Board of Managers of 200 Riverside Boulevard at Trump Place Condominium, which is, in fact, referenced throughout the report.
With respect to confirming Referee Kahn's report, "it is well-established that the report of a Referee shall be confirmed whenever the findings contained therein are substantially supported by the record and the Referee has clearly defined the issues and resolved matters of credibility." Kaplan v Einy, 209 AD2d 248, 251 (1st Dept. 1994); see alsoMelnitzky v Uribe, 33 AD3d 373 (1st Dept. 2006). Since Referee Kahn's function of reporting the amounts due to lienholders of the surplus monies in this action and of ascertaining the priority of such liens had nothing to do with resolving matters of credibility, and there were no hearings or transcripts for this Court to review, we turn to the issue of whether or not Referee Kahn properly exercised his discretion here. See Kaplan v Einy, 209 AD2d at 251.
In the instant matter, Referee Kahn providently exercised his discretion because his findings are substantially supported by both the record and the case law. The record supports Referee Kahn's determination that the Board of Managers established its lien on the surplus monies in this matter. Said lien is a statutory lien for the unpaid common charges, pursuant to Real Property Law $339-z, and it takes priority over all other liens, except liens for taxes on the unit and liens for all sums unpaid on a first mortgage. See Real Property Law § 339-z; Bankers Trust Co. v Board of Managers of the Park 900 Condominium, 81 NY2d 1033, 1035-1036 (1993). Since there were no tax issues noted in the moving papers, and there were no unpaid sums on the first mortgage in this surplus monies proceeding, Referee Kahn correctly determined that the surplus monies should be paid first to the Board of Managers in the sum of $11,153.42. Referee Kahn also correctly determined that the balance of the surplus monies, after-payment of Board of Managers' legal fees and disbursements, should be released to De Brito Pursuant: to Article 5, Section 5.5(c) of the Condominium's by-laws, the Board of Managers is entitled to recover its attorneys' fees and disbursements incurred in any proceeding brought to collect unpaid common charges or assessments.
The Board of Managers is entitled to an order directing payment as set forth in Referee Kahn's report. See RPAPL § 1362(1). The Board of Managers is further entitled to an order referring this matter to a Special Referee to determine the amount, due to the Board of Managers for attorneys' fees and disbursements. See RPAPL § 1361(2).
Accordingly, the Board of Managers' unopposed motion to confirm the report of Referee Irwin Kahn is granted and the report is ratified and confirmed. The disbursement of the surplus monies in this matter is hereby ordered and directed to take place as set forth in Referee Kahn's August 8, 2008 report. It is further ordered that this action is referred to in order to ascertain and report the amount due to the Board of Managers from the surplus monies for attorneys' fees and disbursements.
This constitutes the decision and order of the court.