| Perez v Fiore |
| 2010 NY Slip Op 08918 [78 AD3d 1143] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Robert Perez, Respondent, v Rocco Fiore, Jr., Appellant, etal., Additional Counterclaim Defendants. |
—[*1] Schuman Sall & Geist, White Plains, N.Y. (Matthew D. Schwarz of counsel), forrespondent.
In an action, inter alia, for the partition of real property, the defendant Rocco Fiore, Jr.,appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, WestchesterCounty (Lefkowitz, J.), dated March 30, 2009, as denied his motion to reject, and granted thosebranches of the plaintiff's cross motion which were to confirm, so much of a referee's report(Maria, R.), dated August 1, 2008, made after a hearing, as concluded that the plaintiff is entitledto receive, from the proceeds of the sale of the subject property, the sums of $7,692.58,$51,700.34, and $4,766.96, representing certain payments for household repairs andimprovements, payments with respect to the mortgage in connection with the subject property,and payments made in connection with a forbearance agreement, respectively, and (2) so much ofa judgment of the same court dated June 1, 2009, as, upon the order, directed distribution of theproceeds of the sale of the subject property in accordance with the order.
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it isfurther,
Ordered that the judgment is modified, on the law and the facts, by deleting the provisionsthereof directing the distribution to the plaintiff, from the proceeds of the sale of the subjectproperty, of the sums of $7,692.58 and $4,766.96, representing payments for household repairsand improvements and payments made in connection with the forbearance agreement,respectively; as so modified, the judgment is affirmed insofar as appealed from, without costs ordisbursements, those branches of the motion of the defendant Rocco Fiore, Jr., which were toreject so much of the referee's report as concluded that the plaintiff was entitled to receive, fromthe proceeds of the sale of the subject property, the sums of $7,692.58 and $4,766.96,representing payments for repairs and household improvements and payments made inconnection with the forbearance agreement, respectively, are granted, those branches of theplaintiff's cross motion which were to confirm those portions of the referee's report are denied,the order is modified accordingly, and the matter is remitted to the Supreme Court, WestchesterCounty, for the entry of an appropriate amended judgment.[*2]
The appeal from the intermediate order must bedismissed because the right of direct appeal therefrom terminated with the entry of judgment inthe action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appealfrom the order are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
This Court possesses the authority to review a determination rendered after a hearing whichis as broad as that of the hearing court, and may render the judgment it finds warranted by thefacts, taking into account that in a close case, the referee had the advantage of seeing thewitnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983]; Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074, 1075[2010]; Melius v Breslin, 46 AD3d 524, 525 [2007]; Betsy Meyer Assoc., Inc. vLorber, 42 AD3d 509 [2007]). In this partition action, the referee's conclusion that theplaintiff was entitled to receive, from the proceeds of sale of the subject property, the sum of$21,013, representing one half of the amount he paid to cure the default on the mortgage on thesubject property, and the sum of $30,687.34, representing one half of the additional amount hepaid to keep the obligation on the mortgage current, was supported by the record, and properlyconfirmed by the Supreme Court (see Frater v Lavine, 229 AD2d 564 [1996]). Theplaintiff, whose wholly-owned corporation made these payments in consideration of the transfer,to him, of a one-half interest in the subject property, established that he was entitled to theseamounts in accordance with the doctrine of equitable subrogation, as the payments he madeserved to protect his ownership interest in the subject property (see Gerseta Corp. v EquitableTrust Co. of N.Y., 241 NY 418, 425-426 [1926]; Broadway Houston Mack Dev., LLC vKohl, 71 AD3d 937 [2010]; Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev.Corp., 64 AD3d 85, 106 [2009]; Federal Natl. Mtge. Assn. v Woodbury, 254 AD2d182 [1998]; Cohn v Rothman-Goodman Mgt. Corp., 155 AD2d 579, 579-580 [1989]).We need not consider the contention of the defendant Rocco Fiore, Jr. (hereinafter the appellant),that these amounts should not have been awarded to the plaintiff because the payments weremade by the plaintiff's wholly-owned corporation, since that contention is raised for the first timeon appeal (see Vetland v FX Enters. I, Ltd., 49 AD3d 632, 635 [2008]; 45-02 FoodCorp. v 45-02 43rd Realty LLC, 37 AD3d 522, 526 [2007]).
However, the record does not support the award to the plaintiff of the sum of $4,766.96, forpayments he made in connection with a forbearance agreement. There is insufficient evidence inthe record to establish that a check issued by the plaintiff's wholly-owned corporation in the faceamount of $5,400 included money that was used to make the payments in connection with theforbearance agreement, and the plaintiff's testimony before the referee with respect to this issuewas equivocal. In addition, the portion of the referee's report which concluded that the plaintiffwas entitled to receive the sum of $7,692.58, representing certain payments he made forhousehold repairs and improvements, should have been rejected by the Supreme Court. Theseexpenses were incurred and paid in 1997, 1998, and 1999, long before the plaintiff obtained anownership interest in the subject property. These payments were made voluntarily, and were notrecoverable under the doctrine of equitable subrogation (see Broadway Houston Mack Dev.,LLC v Kohl, 71 AD3d at 937; Bermuda Trust Co. v Ameropan Oil Corp., 266 AD2d251 [1999]; Cohn v Rothman-Goodman Mgt. Corp., 155 AD2d at 580).
The parties' remaining contentions either need not be addressed in light of our determination,or are without merit. Mastro, J.P., Balkin, Eng and Hall, JJ., concur.