Daly v Courten

[*1] Daly v Courten 2016 NY Slip Op 51277(U) Decided on September 9, 2016 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 13, 2016; it will not be published in the printed Official Reports.

Decided on September 9, 2016
Supreme Court, Kings County

Grace Daly, Plaintiff,

against

Darcy Courten AS EXECUTOR OF THE ESTATE OF EVADNEY MICKLE, DECEASED and HUBERT MICKLE, Defendants.



16834/12



Attorney for Plaintiff
Law office of Michael L. Kaplan
2911 Kings highway
Brooklyn, New York 11229
(718) 377-0600 Defendant Pro Se
Hurbert Mickle

Defendant Pro Se
Darcy Curten
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the Notice of Motion filed on May 4, 2016, by plaintiff Grace Daly (hereinafter Daly) for an order referring the action to Special Referee Richard Allman for the purpose of enforcing the parties stipulation of settlement (hereinafter the settlement). Neither defendant has opposed the motion

Notice of motion

Affirmation in support

Exhibits A—L

[*2]BACKGROUND

On August 6, 2012, Daly commenced the instant action for partition of certain real property and for an accounting by filing a summons, verified complaint, and notice of pendency with the Kings County Clerk's Office (KCCO).[FN1] Darcy Courten (hereinafter Courten) as executor of the estate of Evadney Mickle (hereinafter E. Mickle) interposed an answer with counterclaims dated October 12, 2012. Hubert Mickle (hereinafter H. Mickle) interposed an answer with counterclaims dated September 15, 2014.

The verified complaint alleges the following salient facts. By deed dated September 28, 1979, H. Mickle, E. Mickle and Daly acquired title in fee simple to certain real property located at 938 East 103rd street (hereinafter the subject property). E. Mickle is Daly's sister and was married for a time to H. Mickel. On May 8, 2011, E. Mickle passed away. On September 13, 2011, Courteen was issued letters testamentary for the estate of E. Mickle. Each of the parties has an undivided interest in the subject property with Daly having a one half interest and H. Mickel and Courten each having a one quarter interest. Courten, as executor of E. Mickel's estate has collected rents from tenants of the subject property.

Daly seeks an accounting as to the rents, profits and expenses of the subject property. Daly also seeks an order directing a sale of the subject property and a distribution of the proceeds in accordance with the value of the parties' respective interest.

On December 4, 2014, at the request of Justice David Schmidt and with the consent of all parties, the issue raised in the partition action were referred to a judicial hearing officer (JHO) to hear and determine all issues. Pursuant to Article 22 of the Judiciary Law and CPLR 4301, the case was assigned to Special Referee Richard Allman.

On July 11, 2015, the parties entered into a stipulation of settlement on the record before Special Referee Richard Allman. By one of the terms of the stipulation, Special Referee Richard Allman was to retain jurisdiction to resolve any dispute in the enforcement of the settlement.

LAW AND APPLICATION

Daly and the defendants had previously agreed to have the action heard and determined by a special referee.

A referee appointed to hear and determine an issue has all the powers of the court in performing a like function, including entertaining post-trial motions pursuant to CPLR article 44 (Broderson v Parsons, 106 AD3d 677 [2nd Dept 2013] citing CPLR 4301, 4318).

CPLR 4301 pertains to the powers of a referee and provides in pertinent part as follows:

A referee to determine an issue or to perform an act shall have all the powers of a court in performing a like function; but he shall have no power to relieve himself of his duties, to appoint a successor or to adjudge any person except a witness before him guilty of contempt. For the purposes of this article, the term referee shall be deemed to include [*3]judicial hearing officer.

The parties also entered into a stipulation before Special Referee Richard Allman resolving the issues in the instant action. The stipulation before Special Referee Richard Allman is the subject of the instant motion. The parties may, by stipulation, chart their own course in litigation (HCE Associates v 3000 Watermill Lane Realty Corp., 131 AD2d 543 [2nd Dept 1987]).

Daly has invoked the term of the settlement which gave Special Referee Richard Allman continuing jurisdiction to enforce the settlement. Daly claims that the defendants have violated several of its terms and she seeks an order from Special Referee Richard Allman to compel its enforcement.

CONCLUSION

Grace Daly's motion for an order referring the action to Special Referee Richard Allman for the purpose of enforcing the parties stipulation of settlement is granted.

In accordance with the terms of the parties' stipulation, the matter is referred forthwith to Special Referee Richard Allman to hear and determine the instant motion to compel compliance with the terms of the parties' settlement.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C. Footnotes

Footnote 1:Grady did not annex her pleadings or that of the defendants to the motion. The Court learned of their content by reviewing the KCCO's minutes. The Court may take judicial notice of its own records (see Wachovia Bank, N.A. v Otto N. Williams, 17 Misc 3d 1127[A] [NY Sup 2007] citing Matter of Khatibi v Weill, 8 AD3d 485 [2nd Dept 2004]).