587 Development Inc. v. Pizzuto

8 A.D.3d 5, 777 N.Y.S.2d 494, 2004 N.Y. App. Div. LEXIS 7385

Opinion

Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered March 18, 2003, which, upon the court’s prior confirmation of the report of the Special Referee, inter alia, granted defendant’s motion for summary judgment dismissing the amended complaint, unanimously affirmed, with costs.

Plaintiff registered no objection to the reference at the time it was made, never appealed from the order referring the matter, and indeed participated without reservation in the hearing before the Special Referee. Accordingly, plaintiffs challenge to the validity of the reference, first raised in its opposition to defendant’s motion to confirm the Special Referee’s report, has been waived. Were plaintiffs arguments respecting the propriety of the reference properly before us, we would find them to be without merit. In this action, which essentially sought an accounting and disgorgement of purportedly wrongfully appropriated funds, the challenged reference was entirely appropriate (see CPLR 4212, 4317 [b]).

The Referee’s findings, among them that defendant duly accounted for the proceeds of the sale of plaintiff corporation’s real estate assets and retained from those proceeds only the funds to which he was entitled, are supported by the hearing record and, accordingly, we decline to disturb them (see RC 27th Ave. Realty Corp. v New York City Hous. Auth., 305 AD2d 135 [2003]). Concur—Buckley, P.J., Tom, Mazzarelli, Sullivan and Ellerin, JJ.