European American Bank & Trust Co. v. H. Frenkel, Ltd.

163 A.D.2d 154, 557 N.Y.S.2d 371, 1990 N.Y. App. Div. LEXIS 8310

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1990
• Status: Published

Opinion

Supreme Court, New York County (David Saxe, J.), entered July 28, 1989, based on an order entered September 8, 1988, granting plaintiff’s motion for summary judgment, in favor of plaintiff against defendants, H. Frenkel, Ltd. and Herman Frenkel, in the total sum of $304,482.50, and an order of the same court and Justice, entered April 14, 1989, which, upon reargument, inter alia, granted plaintiff summary judgment against defendant Tobi Frenkel in the sum of $212,000 plus interest from September 24, 1988 and directed the clerk to enter a judgment accordingly, both unanimously affirmed, with costs and disbursements.

It is not contested that plaintiff bank loaned H. Frenkel, Ltd. $212,000; that H. Frenkel, Ltd. gave back a commercial note therefor; and that the individual defendants gave personal guarantees to the bank to cover the debts owed by H. Frenkel, Ltd. The defendants defaulted on the note and the guarantees. Thereafter plaintiff moved for summary judgment in lieu of complaint.

Defendants contested service of the summons and motion for summary judgment in lieu of complaint. A traverse hearing was held before a Referee, whose finding in favor of plaintiffs claim of service was confirmed. Defendants contest that confirmation on appeal. "The report of a referee should be confirmed if the findings therein are supported by the record.” (Namer v 152-54-56 W. 15th St. Realty Corp., 108 AD2d 705.) "Generally, New York courts will look with favor upon a Referee’s report, inasmuch as the Referee, as trier of fact, is considered to be in the best position to determine the issues presented.” (Matter of Holy Spirit Assn. v Tax Commn., 81 AD2d 64, 70-71, revd on other grounds 55 NY2d 512.) The evidence presented at the traverse hearing, consisting of the testimony, affidavits of service and logbook entries of the process server, along with the testimony of defendant Tobi Frenkel, support the determination of the Referee and its confirmation by the IAS court.

Defendants’ other defenses raised with respect to the guarantees and the underlying debt have been reviewed and found to be meritless. Concur—Kupferman, J. P., Sullivan, Asch, Wallach and Smith, JJ.