Home Federal Savings & Loan Ass'n v. Four Star Heights

56 A.D.2d 909, 392 N.Y.S.2d 843, 1977 N.Y. App. Div. LEXIS 11311

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 1977
• Status: Published

Opinion

In three separate surplus money proceedings involving three different properties, defendants Francis Scaringi, Jr., and Elizabeth Pfister appeal from so much of each of three orders of the Supreme Court, Kings County (one in each proceeding), each dated August 27, 1976, as, after hearings in connection with motions to confirm Referees’ reports, declared the respective mortgages on which they are mortgagees to be void and denied them the right to participate in any surplus moneys. Orders reversed insofar as appealed from, on the law, and proceedings remanded to Special Term for a de novo hearing and a new determination, with costs to abide the event. Special Term’s telephone conversation with the missing witness, whose testimony on the issues (as correctly stated by the court) "would have shed considerable light”, wherein the caller stated that he would not testify because there had been threats made against his life, was egregiously prejudicial to appellants, especially since Special Term’s findings were based, in large part, on its belief in the lack of credibility of appellants. The interests of justice require a hearing de novo. Hargett, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.