Real Estate Mtge. Network, Inc. v. Pretto

Real Estate Mtge. Network, Inc. v Pretto (2019 NY Slip Op 03390) Real Estate Mtge. Network, Inc. v Pretto 2019 NY Slip Op 03390 Decided on May 1, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 1, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. RUTH C. BALKIN LEONARD B. AUSTIN ROBERT J. MILLER, JJ. 2017-01917 (Index No. 19492/12) [*1]Real Estate Mortgage Network, Inc., appellant, v Ernest Pretto, respondent, et al., defendants. Rosicki, Rosicki & Associates, P.C., Plainview, NY (Edward Rugino of counsel), for appellant. DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Howard G. Lane, J.), entered June 2, 2016. The order denied the plaintiff's motion, inter alia, to confirm a referee's report and for a judgment of foreclosure and sale, without prejudice to renew upon confirmation of the referee's report. ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of the plaintiff's motion. The plaintiff commenced this action against the defendant Ernest Pretto (hereinafter the defendant), among others, to foreclose a mortgage on certain property located in Queens. The defendant interposed an answer. In an order dated May 5, 2015, the Supreme Court granted the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference. Thereafter, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale. The court denied the motion without prejudice to renew upon confirmation of the referee's report. The plaintiff appeals. CPLR 4403 authorizes a court to confirm or reject a referee's report and, thereafter, to "render decision directing judgment in the action." There is no requirement under the statute that a motion to confirm a referee's report be made before a motion for a judgment of foreclosure and sale may be brought. Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination on the merits of the plaintiff's motion (see Bank of Am., N.A. v Lucido, 163 AD3d 614, 616; Everhome Mtge. Co. v Berger, 151 AD3d 811, 813; Downey Sav. & Loan Assn., F.A. v Aribisala, 147 AD3d 911, 912). In light of our determination, we need not address the plaintiff's remaining contention. RIVERA, J.P., BALKIN, AUSTIN and MILLER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court