R4 RE, LLC v. Franklin Wash., Inc.

Opinion

R4 RE, LLC v Franklin Wash., Inc.

2026 NY Slip Op 04882

August 5, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

R4 RE, LLC, respondent,

v

Franklin Washington, Inc., et al., appellants, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2024-09932, (Index No. 517067/23)

Colleen D. Duffy, J.P.

Paul Wooten

Janice A. Taylor

Phillip Hom, JJ.

Michael Kennedy Karlson, New York, NY, for appellants.

Einig & Bush, LLP, New York, NY (Michael R. Bush of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Franklin Washington, Inc., and Bertha Applewhite appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Lawrence Knipel, J.), dated July 17, 2024. The order and judgment of foreclosure and sale granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.

In June 2023, the plaintiff commenced this action to foreclose a mortgage encumbering certain real property located in Brooklyn (hereinafter the property) against, among others, the borrower, Franklin Washington, Inc., and its sole shareholder, Bertha Applewhite (hereinafter together the defendants). In an order dated January 17, 2024, the Supreme Court granted the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answer, and for an order of reference and appointed a referee to compute the amount due on the note.

In May 2024, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. The defendants opposed. In an order and judgment of foreclosure and sale dated July 17, 2024, the Supreme Court granted the plaintiff's motion, confirmed the referee's report, and directed the sale of the property. The defendants appeal.

"The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility" (Pennymac Corp. v Pryce, 211 AD3d 1029, 1030 [internal quotation marks omitted]). Here, contrary to the defendants' contentions, the referee's computations regarding the amount due on the note, as well as the referee's finding that the property should be sold in one parcel, were substantially supported by the record (see Chondrite Asset Trust v 34 Drive Corp., 240 AD3d 657, 659).

Contrary to the defendants' contention, "[w]here, as here, a defendant had an opportunity to raise questions and submit evidence directly to the Supreme Court, which evidence [*2]could be considered by the court in determining whether to confirm the referee's report, the defendant is not prejudiced by any error in failing to hold a hearing" (Bank of N.Y. Mellon v Viola, 181 AD3d 767, 770; see U.S. Bank, N.A. v Mays, 221 AD3d 934, 935).

Accordingly, the Supreme Court properly granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale.

DUFFY, J.P., WOOTEN, TAYLOR and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court