| MacNiallias v Potter |
| 2011 NY Slip Op 01625 [82 AD3d 718] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Tarlach MacNiallias, Respondent, v Kevin Potter,Appellant. |
—[*1] Steven Zalewski & Associates, P.C., Kew Gardens, N.Y. (Dustin Bowman of counsel), forrespondent.
In an action for the partition and sale of real property and for an accounting, the defendantappeals from an order and judgment (one paper) of the Supreme Court, Queens County (Weiss,J.), dated October 1, 2009, which granted the plaintiff's motion to confirm the report of a refereedated July 9, 2007 (Baum, Ref.), directed that the property be sold at auction, and further directedthat, after the satisfaction of all outstanding mortgages, the plaintiff be awarded the sum of$57,451.85, with the remainder of the proceeds to be divided equally between the plaintiff andthe defendant.
Ordered that the order and judgment is affirmed, with costs.
The plaintiff Tarlach MacNiallias and the defendant Kevin Potter were domestic partners.They purchased a house in Corona, Queens, as tenants in common, on March 31, 1997. Theirrelationship subsequently deteriorated, and MacNiallias moved out of the house in July 2002.MacNiallias thereafter commenced the instant action to sell the property and divide the proceedsbetween himself and Potter. A referee was appointed to determine the parties' respective interestsin the property.
MacNiallias submitted an affidavit, loan statements, copies of checks, the original mortgageagreement, refinanced mortgage agreements, and statements from his checking account, in orderto demonstrate his interest in the property. Potter testified in opposition that he had some repairsdone to the house, including fixing a leak in the ceiling, and replacing a bathtub. The refereefound that MacNiallias established that he was entitled to receive the sum of $57,451.85,representing his contributions to the value of the house. MacNiallias moved to confirm thereferee's report, and Potter opposed the motion. In an order and judgment (one paper) datedOctober 1, 2009, the Supreme Court, Queens County, granted MacNiallias's motion to confirmthe referee's report, directed that the house be sold at auction, and directed that, after thesatisfaction of all outstanding mortgages, MacNiallias be awarded the sum of $57,451.85, withthe remainder of the proceeds to be divided equally between him and Potter.[*2]
The report and recommendations of a referee should beconfirmed if its findings are supported by the record (see Sichel v Polak, 36 AD3d 416 [2007]; Baker v Kohler, 28 AD3d 375[2006]). Here, the Supreme Court properly concluded that the referee's report was supported bythe record.
The defendant's remaining contentions are without merit. Mastro, J.P., Dillon, Eng and Sgroi,JJ., concur.