George Thomas v Donald Thomas

Thomas v Thomas 2005 NY Slip Op 06669 [21 AD3d 949] September 12, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 16, 2005

George Thomas, Appellant,
v
Donald Thomas, Respondent.

—[*1]In an action to partition real property, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Dowd, J.), dated November 17, 2003, which, sua sponte, confirmed a referee's report dated August 7, 2003, and (2) an order of the same court (Douglass, J.), dated April 7, 2004, which, in effect, denied his motion, in effect, to vacate the prior order.

Ordered that the appeal from the order dated November 17, 2003, is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice, and leave to appeal has not been granted (see CPLR 5701 [a] [2]); and it is further,

Ordered that the order dated April 7, 2004, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondent.

"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" (Pittoni v Boland, 278 AD2d 396 [2000], quoting Stone v Stone, 229 AD2d 388 [1996]; see Matter of Smiros v Lopez, 251 AD2d 587 [1998]). Here, the referee's findings regarding the distribution of the parties' respective shares of the proceeds and the profits from the sale of the subject real property were substantially supported by the record. Thus, the Supreme Court properly, in effect, denied the plaintiff's motion, in effect, to vacate the order dated November 17, 2003, which, sua sponte, [*2]confirmed the referee's report.

The plaintiff's remaining contentions are without merit. Florio, J.P., H. Miller, Ritter and Rivera, JJ., concur.