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Grossman v. WL Napeague Property Corp.

Supreme Court of New York, Second Department

July 3, 2013

Muriel Grossman, etc., et al., appellants-respondents,
v.
WL Napeague Property Corp., respondent-appellant, S.T.R., LLC, respondent, et al., defendants. Index No. 7276/04

Richard A. Kraslow, P.C., Melville, N.Y., for appellants-respondents.

Stephen A. Grossman, Sag Harbor, N.Y., for respondent-appellant.

Eric Rosenberg, New York, N.Y., for respondent.

RANDALL T. ENG, P.J., RUTH C. BALKIN, SHERI S. ROMAN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Weber, J.), dated December 14, 2011, as, upon a decision of the same court dated September 24, 2010, made after a nonjury trial, and upon the report of a referee finding that the sum of $39, 737.73 was due upon the mortgage and the bond, confirmed the report of the referee and directed the defendants to pay the sum of only $39, 737.73, and the defendant WL Napeague Property Corp. cross-appeals, as limited by its brief, from so much of the same order as, in effect, denied the motion of the defendant S.T.R., LLC, in which it joined, to modify the referee's report, and directed it to pay the plaintiffs the sum of $39, 737.73 as due upon the mortgage and the bond.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendant S.T.R., LLC, payable by the plaintiffs.

In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial judge had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 N.Y.2d 492, 499). Here, the trial court's determinations as to the purchase price of the property and the amount of the mortgage prepayment made at or around the time of the closing were warranted by the facts, and should not be disturbed.

The parties' remaining contentions are without merit.

ENG, P.J., BALKIN, ROMAN and MILLER, JJ., concur.

DECISION & ORDER ON MOTION

Separate motions by the respondent-appellant and the respondent to dismiss an appeal from an order of the Supreme Court, Suffolk County, dated December 14, 2011, on the ground that the appellants-respondents waived their right to pursue the appeal. By decision and order of this Court dated September 12, 2012, the motions were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motions and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motions are denied.


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