`FILED: NEW YORK COUNTY CLERK 08/24/2015 04:27 PMFILED: NEW YORK COUNTY CLERK 03/16/2017 06:05 PM
`..... ~ --
`:
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`NYSCEF DOC. NO. 47NYSCEF DOC. NO. 71
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`
`
`INDEX NO. 850129/2013INDEX NO. 850129/2013
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`RECEIVED NYSCEF: 08/24/2015RECEIVED NYSCEF: 03/16/2017
`SUPREME COURT OF THE STATE OF NEW YORK
`NEW YORK COUNTY
`
`PRESENT: Hon. Robert D. Kalish
`Justice
`
`PART 29
`
`HSBC Bank USA, N.A.
`
`-v-
`
`Sum C. Hui; Board of Manag~rs of the 310
`West 52"d Street Condominium a/k/a the Link
`Condominium; New York City Environmental
`Control Board
`
`INDEX NO.
`
`850129/2013
`
`MOTION SEQ.
`
`002 and 003
`
`The following papers, numbered 1 and 2 were read in determining the Plaintiff's motions for an order granting tl
`Plaintiff a Judgment of Foreclosure and Sale
`
`No(s). _
`
`____!1 __
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`No(s). -~2'-----
`
`Plaintiff's motions for an order granting --------------------------------------------(cid:173)
`th~PJal·ntjff a Judament of F
`..re)closure
`anu Sa e (mOtion sequence 02
`-Affirmation -Affidavits -Exhibits
`
`0o
`
`rJ~ i ~t~n;,,.w~t:tmrc m~~r o~r~8 r f! ~~~u ~a -----------------------------------------------
`an(j ~ale /motiOn ~equence oH'J)
`-Affirmation -Affidavits - Exhibits
`
`The Plaintiff HSBC Bank USA, N.A.'s two motions under sequence numbers 002 and 003
`both requesting an order of the Court confirming a referee's report and granting the Plaintiff a
`judgment of foreclosure and sale in the underlying action are both decided in accordance with the
`attached memorandum decision.
`
`Dated: August 21, 2015
`
`fll/jd)_
`° ; , I ,;~j/ I a
`·~TD.K~SH
`1. Check one: ............................. g1CASE DISPOSED D JN-FINAL DISPOSITION
`J.S.C.
`2. Check as appropriate: MOTION IS: D GRANTED D DENIED D GRANTED IN PART D OTHER
`3. Check as appropriate: ................. D SETTLE ORDER D SUBMIT ORDER
`D DO NOT POST D FIDUCIARY APPOINTMENT D REFERENCE
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/16/2017 06:05 PM
`NYSCEF DOC. NO. 71
`
`INDEX NO. 850129/2013
`
`RECEIVED NYSCEF: 03/16/2017
`
`SUPREME COURT OF THE STATE OF NEW YORK
`NEW YORK COUNTY - PART 29
`----------------------------------------------------------------)(
`HSBC Bank USA, N.A.
`
`Plaintiff
`
`-against-
`
`DECISION AND ORDER
`
`INDEX NO.: 850129/2013
`
`Sum C. Hui; Board of Managers of the
`310 West 52nd Street Condominium
`a/k/a the Link Condominium;
`New York City Environmental Control Board
`
`Defendant
`----------------------------------------------------------------)(
`
`Plaintiffs motion to confirm a referee's report and for a judgment of foreclosure and
`sale is granted to the extent as follows:
`
`The Court has before it two motions by the Plaintiff HSBC Bank USA, N.A. both
`requesting an order of the Court granting the Plaintiff a judgment of foreclosure and sale in the
`underlying action. The Court notes that although the Plaintiff made two motions for a
`judgment of foreclosure and sale under motion sequences 002 and 003, both motions are
`seeking the same remedy and the Plaintiff has submitted identical papers in support of both
`motions.
`
`The Plaintiff commenced the underlying action by way of summons and complaint
`dated May 15, 2013. The Plaintiff served the summons and complaint upon the Defendant
`Sum C. Hui on June 4, 2014 pursuant to CPLR §308(2). Mr. Hui defaulted in appearance and
`the Plaintiff moved for a special referee to be appointed to determine the amount due to the
`Plaintiff on the Note and Mortgage. By order dated October 9, 2014, the Court appointed a
`special referee to determine said issue. The Plaintiff attaches with its two motions a copy of
`the special referee Charles Sidney Lester, Esquire's report dated October 28, 2014, as well as
`affidavits of service indicating that the instant motions were served upon Mr. Hui at the same
`address where service was made of the Summons and Complaint.
`
`The Defendant has not submitted any opposition to the instant motion.
`
`The referee's report dated October 28, 2014 indicates that the referee determined that
`the amount due to the Plaintiff upon the Mortgage and Note as of July 28, 2014, the date
`interest was computed to in the report, is $588,067.96. The referee's report further indicates
`that the property should be sold in one parcel.
`
`

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`FILED: NEW YORK COUNTY CLERK 03/16/2017 06:05 PM
`..
`' .
`NYSCEF DOC. NO. 71
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`INDEX NO. 850129/2013
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`RECEIVED NYSCEF: 03/16/2017
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`The Plaintiff now moves for the Court by Notice of Motion dated May 29, 2015 to
`confirm the referee's report and for a judgment of foreclosure and sale. 1
`
`CPLR §4403 reads as follows:
`
`4403. Motion for new trial or to confirm or reject or grant other relief after reference to
`report or verdict of advisory jury
`Upon the motion of any party or on his own initiative, the judge required to decide the
`issue may confirm or reject, in whole or in part, the verdict of an advisory jury or the
`report of a referee to report; may make new findings with or without taking additional
`testimony; and may order a new trial or hearing. The motion shall be made within fifteen
`days after the verdict or the filing of the report and prior to further trial in the action.
`Where no issues remain to be tried the court shall render decision directing judgment in
`the action.
`
`Pursuant to CPLR §4403, the Supreme Court has the power to "confirm or reject, in
`whole or in part ... the report of a referee" and may "make new findings with or without taking
`additional testimony" or "order a new trial or hearing" (See Matter of Frontier Ins. Co., 73 AD3d
`36, 42-43 (NY App Div 3d Dept 2010); Stein v. American Mortg. Banking, 216 AD2d 458 (NY
`App Div 2d Dept 1995)). "Generally, the recommendations and report of a referee should be
`confirmed as long as they are substantially supported by the record and the referee has
`clearly defined the issues and resolved matters of credibility" (IG Second Generation Partners.
`L.P. v Kaygreen Realty Co., 114 AD3d 641, 643 (NY App Div 2d Dept 2014) citing Spodek v
`Feibusch, 55 AD3d 903 (NY App Div 2d Dept 2014); Matter of County Conduit Corp., 49 AD3d
`641 (NY App Div 2d Dept 2008); Stone v. Stone, 229 AD2d 388 (NY App Div 2d Dept 1996)).
`
`There being no opposition to the motion, and based upon the papers submitted to the
`court, the Plaintiffs motion to confirm the referee's report and for a judgment of foreclosure
`and sale is hereby granted without opposition to the extent as follows:
`
`It is hereby ORDERED that the Referee's report is confirmed pursuant to CPLR §4403.
`It is further
`
`ORDERED that the Plaintiff shall submit to the Orders Section (60 Centre Street, Room
`119a) within 20 days of entry of this order with notice to the Defendant, a proposed Judgment
`of Foreclosure and Sale and Bill of Costs in substantially the form submitted in the instant
`motion and in accordance with the confirmed referee's report and the instant decision. In
`particular the proposed Judgment of Foreclosure and Sale shall indicate that the premises
`shall be sold as a single parcel. It is further
`
`ORDERED that the proposed Judgment of Foreclosure and Sale shall indicate that the
`subject premises shall be sold at public auction at 60 Centre Street, New York, NY by and
`under the direction of Charles Sidney Lester Esq. It is further
`
`I
`
`The Court notes that the Plaintiff docs not indicate in the Notice of Motion that it is asking the Court to confirm the referee·s report.
`However the Plaintiff requests said relief in the Attorney Affirmation in Support of Application for Judgment of Foreclosure and Sale. The
`Court will consider the Plaintiffs request to confirm the referee's report in the instant motion as it was included in the attorney·s affirn1ation.
`However. the Plaintiffs counsel is advised that it would be better practice to include all specifically requested relief in the Notice of Motion.
`
`-2-
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`FILED: NEW YORK COUNTY CLERK 03/16/2017 06:05 PM
`NYSCEF DOC. NO. 71
`
`INDEX NO. 850129/2013
`
`RECEIVED NYSCEF: 03/16/2017
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`ORDERED that the Judgment of Foreclosure and Sale shall name The New York Law
`Journal as the periodical in which the Plaintiff shall to give public notice of the sale of the
`premises. It is further
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`ORDERED that the Judgment of Foreclosure and Sale shall include a provision
`indicating that reasonable legal fees be set at $2,500.
`
`The foregoing constitutes the ORDER and DECISION of the Court.
`
`Dated: August 21, 2015
`
`'LISH
`J.S.C.
`
`-3-
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`