Matter of Park Residence Condos, LLC v 348 13th St., LLC

Matter of Park Residence Condos, LLC v 348 13th St., LLC 2020 NY Slip Op 07579 Decided on December 16, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 16, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY, JJ.
2018-05920
2018-09763
2018-09871
(Index No. 506559/15)

[*1]Matter of Park Residence Condos, LLC, et al., appellants,

v

348 13th Street, LLC, et al., respondents, Jill Simeone, et al., respondents-respondents.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, NY (Anna Higgins of counsel), for appellants.

Davidoff Hutcher & Citron, LLP, New York, NY (Derek Wolman and Andrew K. Rafalaf of counsel), for respondents-respondents.

DECISION & ORDER

In a proceeding, inter alia, pursuant to RPAPL 881 for a license to enter the premises of the respondents Jill Simeone and Stephen Kitts for the purpose, among other things, of conducting a preconstruction survey, the petitioners appeal from (1) an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated April 6, 2018, (2) an order of the same court dated July 13, 2018, and (3) a judgment of the same court dated July 18, 2018. The order dated April 6, 2018, granted the motion of the respondents Jill Simeone and Stephen Kitts to confirm a referee's report and denied the petitioners' cross motion to reject that report. The order dated July 13, 2018, inter alia, awarded the respondent Jill Simeone certain attorneys' fees pursuant to the referee's report. The judgment, upon the orders, is in favor of the respondent Jill Simeone and against the petitioners.

ORDERED that the appeals from the orders are dismissed, as the orders were superseded by the judgment; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that on bill of costs is awarded to the respondents Jill Simeone and Stephen Kitts.

RPAPL 881 authorizes a court to issue a license permitting the temporary entrance onto the property of another when necessitated by construction. By order dated October 16, 2015, the Supreme Court, inter alia, granted the petitioners a temporary license pursuant to RPAPL 881 to enter the premises of the respondents Jill Simeone and Stephen Kitts (hereinafter together the respondents), and referred the issue of "whether [the] [p]etitioners' conduct warrants an award of attorneys' fees and if so the amount that should be awarded" to a referee to hear and report. After a hearing, the referee found that the petitioners' conduct warranted an award of attorneys' fees in [*2]favor of Simeone, and made a recommendation to the court as to the amount of the award, based on the evidence presented at the hearing. The court, in an order, granted the respondents' motion to confirm the referee's report and denied the petitioners' cross motion to reject the report. The petitioners appeal from a judgment entered upon the order.

"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 AD3d 790, 790-791; see Minelli Constr. Co., Inc. v New York City Sch. Constr. Auth., 167 AD3d 593, 593-594). "A referee's credibility determinations are entitled to great weight because, as the trier of fact, he or she has the opportunity to see and hear the witnesses and to observe their demeanor" (Doe v Yisroel, 131 AD3d 1097, 1098).

Here, the record substantially supports the referee's recommendation to award attorneys' fees to Simeone (see Matter of Van Dorn Holdings, LLC v 152 W. 58th Owners Corp., 149 AD3d 518, 519; DDG Warren LLC v Assouline Ritz 1, LLC, 138 AD3d 539, 540). The petitioners' remaining contentions are without merit.

Accordingly, we agree with the Supreme Court's determination confirming the referee's report and entering judgment in favor of Simeone and against the petitioners (see CPLR 4403).

CHAMBERS, J.P., ROMAN, HINDS-RADIX and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court