Frater v. Lavine

Appellate Division of the Supreme Court of New York

Frater v. Lavine

229 A.D.2d 564, 646 N.Y.S.2d 46, 1996 N.Y. App. Div. LEXIS 8280

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 29, 1996

StatusPublished

Cited by15 cases

This text of 229 A.D.2d 564 (Frater v. Lavine) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frater v. Lavine, 229 A.D.2d 564, 646 N.Y.S.2d 46, 1996 N.Y. App. Div. LEXIS 8280 (N.Y. Ct. App. 1996).

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Opinion

—In an action, inter alia, for the partition of real property, the plaintiff appeals, as limited by her brief, from stated portions of an order of the Supreme Court, Queens County (Lane, J.), dated July 10, 1995, which, inter alia, granted the defendant’s motion to confirm the Referee’s report regarding the shares and interests of the parties in the subject property.

Ordered that the order is affirmed insofar as appealed from, with costs.

It is well settled that the determination of a Referee appointed to hear and report is entitled to great weight, particularly where conflicting testimony and matters of credibility are at issue, since the Referee, as the trier of fact, had the opportunity to see and hear the witnesses and to observe them on the stand (see, Schwartz v Meisner, 198 AD2d 634; Bellnier v Bellnier, 158 AD2d 947, 948; Matter of Holy Spirit Assn. for Unification of World Christianity v Tax Commn., 81 AD2d 64, 70; Maushart v Kelly, 10 AD2d 635). Thus, the report and recommendation of a Referee should be confirmed if the findings in the report are supported by the record (see, Tai Wing Hong Importers v King Realty Corp., 208 AD2d 710, 711).

Contrary to the plaintiffs contention, the court properly confirmed the Referee’s report regarding the sale of the subject property and the division of the proceeds. The plaintiff failed to put forth any evidence, other than conclusory allegations, to substantiate her claim that she is entitled to reimbursement for money she allegedly gave the defendant toward the down payment and purchase of the property. Moreover, although a tenant in common may be allowed reimbursement for money expended in repairing and improving the property if the repairs and improvements were made in good faith and were necessary to protect or preserve the property (see, Worthing v Cossar, 93 AD2d 515, 518), there is insufficient evidence in the record to support the plaintiff’s claim for credits for various repairs and improvements (see, Wawrzusin v Wawrzusin, 212 AD2d 779, 780).

[565]*565We have examined the plaintiff’s remaining contentions and find them to be without merit. Thompson, J. P., Joy, Krausman and Florio, JJ., concur.

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—In an action, inter alia, for the partition of real property, the plaintiff appeals, as limited by her brief, from stated portions of an order of the Supreme Court, Queens County (Lane, J.), dated July 10, 1995, which, inter alia, granted the defendant’s motion to confirm the Referee’s report regarding the shares and interests of the parties in the subject property.

Ordered that the order is affirmed insofar as appealed from, with costs.

It is well settled that the determination of a Referee appointed to hear and report is entitled to great weight, particularly where conflicting testimony and matters of credibility are at issue, since the Referee, as the trier of fact, had the opportunity to see and hear the witnesses and to observe them on the stand (see, Schwartz v Meisner, 198 AD2d 634; Bellnier v Bellnier, 158 AD2d 947, 948; Matter of Holy Spirit Assn. for Unification of World Christianity v Tax Commn., 81 AD2d 64, 70; Maushart v Kelly, 10 AD2d 635). Thus, the report and recommendation of a Referee should be confirmed if the findings in the report are supported by the record (see, Tai Wing Hong Importers v King Realty Corp., 208 AD2d 710, 711).

Contrary to the plaintiffs contention, the court properly confirmed the Referee’s report regarding the sale of the subject property and the division of the proceeds. The plaintiff failed to put forth any evidence, other than conclusory allegations, to substantiate her claim that she is entitled to reimbursement for money she allegedly gave the defendant toward the down payment and purchase of the property. Moreover, although a tenant in common may be allowed reimbursement for money expended in repairing and improving the property if the repairs and improvements were made in good faith and were necessary to protect or preserve the property (see, Worthing v Cossar, 93 AD2d 515, 518), there is insufficient evidence in the record to support the plaintiff’s claim for credits for various repairs and improvements (see, Wawrzusin v Wawrzusin, 212 AD2d 779, 780).

[565]*565We have examined the plaintiff’s remaining contentions and find them to be without merit. Thompson, J. P., Joy, Krausman and Florio, JJ., concur.

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Bluebook (online)

229 A.D.2d 564, 646 N.Y.S.2d 46, 1996 N.Y. App. Div. LEXIS 8280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frater-v-lavine-nyappdiv-1996.

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