Kassis v. Mosallem ( 2002 )

—Order and judgment (one paper), Supreme Court, New York County (Louis Crespo, Special Referee), entered July 24, 2001, in an action to recover a share of the proceeds realized upon sale of the parties’ property, in favor of plaintiff and against defendants in the amount of $24,307, plus interest and costs, unanimously affirmed, with costs.

The Special Referee did not exceed the scope of his authority conferred in the order of reference, which granted defendants’ motion for summary judgment dismissing the complaint, granted plaintiff’s cross motion for summary judgment to the extent of dismissing defendants’ counterclaims except for that seeking to recover the amount still owing on the promissory note that plaintiff gave defendant in purchasing a share of the súbject property from him, and referred the matter to a Special Referee to héar and determine such outstanding amount, if any. Clearly, the thrust of the order was that the amount of money that defendant owed plaintiff as a result of the sale of their property depended on the amount of money that plaintiff still owed defendant on the promissory note. The Referee heard and determined only the issue involving the outstanding amount on the promissory note, and his striking a balance on the basis of that determination was a pure arithmetic exercise not inconsistent with the motion court’s dismissal of plaintiff’s complaint. No basis exists to disturb the Referee’s finding as to the amount that plaintiff owed defendant as of the date of the closing of the sale, which turned largely on witness credibility concerning the payments that were made on the note, and is consistent with such documentary evidence as there is. Concur — Nardelli, J.P., Tom, Ellerin, Friedman and Marlow, JJ.