FILED: ROCKLAND COUNTY CLERK 09/27/2018 12:45 PM
`FILED: ROCKLAND COUNTY CLERK 09m2018 12:45 P
`NYSC
`NYSCEF DOC. NO. 84
`3F OOC. NO. 84
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`INDEX NO. 034950/2015
`INDEX NO- 034950/2015
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`09/27/2018
`RECEIVED NYSCEF: 09/27/2018
`RfiCfiIVfiD VYSCEF:
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ROCKLAND
`__________________________________________________________________ X
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`NATIONSTAR MORTGAGE LLC,
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`Plaintiff,
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`—against-
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`ROBERT M. STATA; MERYL P STATA, DEEPGREEN BANK,
`CITIBANK (SOUTH DAKOTA) N.A.; ATLANTIC CREDIT
`& FINANCE SPECIAL FINANCE UNIT, LLC A/P/O CITIBANK,
`N.A.
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`Defendants.
`__________________________________________________________________ X
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`Sherri L. Eisenpress, A.J.S.C.
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`DECISION AND ORDER
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`Index No. 034950/2015
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`(Motion #2)
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`The following papers, numbered 1 to 7, were considered in connection with (i) a Notice
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`of Motion filed by Plaintiff seeking a Judgment of Foreclosure and Sale and confirmation of the
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`Referee’s Report of Amount Due, and related relief:
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`PAPERS
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`NUMBERED
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`Notice of Motion/Affirmation/Biil of Costs/Referee Report of Amount Due/
`Exhibits ‘A"-“S’
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`Affirmation in Opposition/Affidavit of Robert Stata/Exhibits “A"—“J”
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`Affirmation in Reply/Exhibit “A" _
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`1-4
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`5-6
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`7
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`The Court has pending before it a Notice of Motion filed by Plaintiff seeking a Judgment
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`of Foreclosure and Sale and confirmation of the Referee’s Report of Amount Due. Defendants
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`Robert Stata and Meryl Stata oppose the motion on the ground that neither they nor their
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`counsel received any notice of a Referee's hearing and thus did not have an opportunity to
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`object to the calculations. Defendants note that the Referee’s report relies solely upon the
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`Affidavit of Takesha Brown, which does not attach any evidence to support her computations
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`such as a payment history, an escrow accounting or proof of interest computations. In reply,
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`FILED: ROCKLAND COUNTY CLERK 09/27/2018 12:45 PM
`FILED: ROCKLAND COUNTY CLERK 09m2018 12:45 P
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`NYSCEF DOC. NO. 84
`NYSCEF DOC. NO. 84
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`INDEX NO. 034950/2015
`INDEX NO- 034950/2015
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`R<.C«.IV«.D \IYSCEF: 09/27/2018
`RECEIVED NYSCEF: 09/27/2018
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`Plaintiff asserts that Defendants waived their right to the hearing in that they defaulted in
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`answering.
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`It also contends that Defendant fails to demonstrate that the referee’s report is
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`either inaccurate or incomplete.
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`Civil Practice Law and Rules § 4313 states:
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`Except where the reference is to a judicial hearing officer or a special referee,
`upon the entry of an order of reference, the clerk shall send a copy of the order
`to the referee. Unless the order of reference otherwise provides, the referee
`shall forthwith notify the parties of a time and place for the first hearing to be
`held within twenty days after the date of the order or shall forthwith notify the
`court that he declines to serve.
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`In Aurora Loan Servs, LLC v. Taylor, 114 A.D.3d 627, 629, 980 N.Y.S.2d 475 (2d Dept. 2014),
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`the Court held that it was error to confirm the Referee's report without hearing where
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`defendants could not have received notice before the date on which their objections were due.
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`E also 243 West 98h Condominium v. Shapiro, 12 A.D.3d 591, 786 N.Y.S_.2d 67 (2d Dept.
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`2004). Plaintiff does not dispute that no notice of the Referee's hearing was sent to Plaintiff or
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`the counsel which she has had since 2014. For that reason, the Court is remitting this matter
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`to the Referee for a new computation, after Defendant’s counsel is properly noticed of a hearing
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`in accordance with the statutory requirements of Civil Practice Law and Rules § 4313.
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`Therefore, Plaintiff’s Notice of Motion for a Judgment of Foreclosure and Sale is
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`denied without prejudice to re-file after a new Referee computation/hearing is conducted.
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`Plaintiff's counsel is directed to ensure that proper and timely notice is given to Defendants'
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`counsel to provide said counsel an opportunity to present evidence at a hearing, and/or object
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`to any evidence submitted by Plaintiff.
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`Accordingly, it is hereby
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`ORDERED that Plaintiff’s Notice of Motion (#2) is denied without prejudice; and
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`it is further
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`ORDERED that this action is again referred to Gerard Amalfitano, Esq. as
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`Referee, to ascertain and compute the amount due to the plaintiff herein for principal, interest,
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`and other disbursements advanced as provided for in the note and mortgage, excluding
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`attorney’s fees, upon which this action was brought, to examine and report whether or not the
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`2
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`FILED: ROCKLAND COUNTY CLERK 09/27/2018 12:45 PM
`FILED: ROCKLAND COUNTY CLERK 09m2018 12:45 P
`NYSC:
`NYSCEF DOC. NO. 84
`3F DQC. NO. 84
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`034950/2015
`INDEX NO. 034950/2015
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`INDEX N0-
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`09/27/2018
`RECEIVED NYSCEF: 09/27/2018
`RnCfiIVfiD \IYSCEF:
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`mortgaged premises can be sold in parcels, and that Gerard Amalfitano, Esq. as Referee make
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`his report to the Court with all convenient speed; and it is further
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`ORDERED that Referee Amalfitano, Esq. is directed to e—file a letter confirming
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`his appointment through the NYSCEF system immediately; and it is further
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`ORDERED that Plaintiff’s counsel shall ensure that proper notification of the
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`Referee’s computation is provided to counsel for Defendants and that they are given an
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`opportunity to object and/or demand a hearing; and it is further
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`ORDERED that, pursuant to Civil Practice Law and Rules § 8003(a), the sum of
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`TWO HUNDRED FIFI'Y DOLLARS ($250.00) shall be paid to the Referee for the computation
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`stage and upon the filing of his Report; and it is further
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`ORDERED that the Referee is prohibited from accepting or returning any funds
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`for himself or paying funds to himself without compliance with Part 36 of the Rules of the Chief
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`Administrative Judge; and it is further
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`ORDERED that by accepting this appointment the Referee certifies that he is in
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`compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including but not
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`limited to, Section 36.2(c)
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`(Disqualifications from Appointment) and Section 36.2(d)
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`(Limitations on Appointments Based Upon Compensation); and it is further
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`ORDERED that
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`this matter is scheduled for a conference on ML”;
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`NOVEMBER 19I 2018 at 9:45 a.m. — appearances are required unless a new notice of motion
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`for Judgment of Foreclosure and Sale has been e-filed ELM that date. Any motion for
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`Judgment of Foreclosure and Sale must contain proof of the notice of the Referee’s computation
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`upon the defendant's counsel.
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`If a motion for Judgment of Foreclosure and Sale has not been
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`e—filed prior to that conference date, then appearances are required and Plaintiff’s counsel will
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`be required to explain the delay; and it is further
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`ORDERED that Plaintiff’s counsel shall serve a copy of this Decision and Order
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`upon the Court—appointed Referee.
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`FILED: ROCKLAND COUNTY CLERK 09/27/2018 12:45 PM
`FILED: ROCKLAND COUNTY CLERK 09m2018 12:45 P
`
`NYSCEF DOC. NO. 84
`NYSCEF DOC. NO. 84
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`
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`INDEX NO. 034950/2015
`INDEX NO- 034950/‘2015
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`RECEIVED NYSCEF: 09/27/2018
`R<.C«.IV«.D \IYSCEF: 09/27/2018
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`The foregoing constitutes the Decision and Order of this Court on Motion #2
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`Dated:
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`New City, New York
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`September 26, 2018
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`
` HON.
`he Supreme Court
`Acting Justice
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`L. EISENPRESS
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`TO:
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`by e-filing
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`Davidson, Fink LLP
`Attorney for Plaintiff
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`Law Offices of Robert L. Reda, PC.
`Attorney for Robert State and Meryl Stata
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`by mail -
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`Gerard Amalfitano
`Referee
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`254 S Main Street, Suite 517
`New City, NY 10956
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`*** Referee Ramsey must file a letter confirming her appointment through the NYSCEF system
`immediately — all future notifications in this matter will be done solely through the NYSCEF
`system
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`Fein, Such & Crane, LLP
`Attorney for Defendant Deepgreen Bank
`1400 Old Country Road, Suite C103
`Westbury, New York 11590
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`Citibank (South Dakota) NA.
`150 Motor Parkway
`Hauppauge, New York 11788
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`Atlantic Credit & Finance Special Finance Unit, LLC
`80 State Street
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`Albany, New York 12207
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