Citation Numbers： 163 A.D.2d 154, 557 N.Y.S.2d 371, 1990 N.Y. App. Div. LEXIS 8310
Filed Date： 7/10/1990
Status： Precedential
Modified Date： 10/31/2024
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
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.