& Gjertsen, Scarsdale, NY (Mary Aufrecht and Lance
Colquitt of counsel), for appellant.
Morris LLP, New York, NY (Stephanie Sgambati and Steven T.
Knipfelberg of counsel), for respondent.
E. CHAMBERS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN,
HECTOR D. LASALLE, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Yuko Kidd
appeals from a judgment of foreclosure and sale of the
Supreme Court, Westchester County (Giacomo, J.), dated March
31, 2014, which, upon an order of the same court entered
March 15, 2012, confirmed a referee's report and directed
the sale of the subject premises in one parcel.
that the judgment is reversed, on the law, with costs, the
referee's report is rejected, and the matter is remitted
to the Supreme Court, Westchester County, for further
proceedings in accordance herewith.
order entered March 15, 2012, the Supreme Court, inter alia,
awarded the plaintiff summary judgment on the complaint and
denied the cross motion of the defendant Yuko Kidd
(hereinafter the defendant) for summary judgment dismissing
the complaint. The defendant's appeal from that order was
dismissed by a decision and order on motion of this Court
dated May 3, 2013, for failure to perfect (see 22
NYCRR 670.8[e]). As a general rule, we do not consider any
issue raised on a subsequent appeal that could have been
raised in an earlier appeal which was dismissed for failure
to perfect, although this Court has the inherent jurisdiction
to do so (see Bray v Cox, 38 N.Y.2d 350; Green
Tree Credit, LLC v Jelks, 120 A.D.3d 1299; Madison
Realty Capital, L.P. v Broken Angel, LLC, 107 A.D.3d
766; Spiritis v Village of Hempstead Community Dev.
Agency, 63 A.D.3d 907). We decline to exercise our
jurisdiction to determine the merits of the present appeal to
the extent that it raises issues that could have been raised
on the appeal from the order dated March 15, 2012 (see
Bray v Cox, 38 N.Y.2d 350; Green Tree Credit, LLC v
Jelks, 120 A.D.3d 1299; Kapsis v Peragine, 96
A.D.3d 804; Spiritis v Village of Hempstead Community
Dev. Agency, 63 A.D.3d 907).
as the defendant correctly contends, the Supreme Court erred
in confirming the referee's report. 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 (see Matter of Cincotta, 139 A.D.3d
1058; Hudson v Smith, 127 A.D.3d 816; Matter of
County Conduit Corp., 49 A.D.3d 641; Thomas v
Thomas, 21 A.D.3d 949; Matter of Smiros v
Lopez, 251 A.D.2d 587). The referee's findings and
recommendations are advisory only and have no binding effect
on the court, which remains the ultimate arbiter of the
dispute (see Shultis v Woodstock Land Dev. Assoc.,
195 A.D.2d 677). Here, as the defendant contended in
opposition to the plaintiff's submissions, the
referee's findings with respect to the total amount due
upon the mortgage were not substantially supported by the
record inasmuch as the computation was premised upon
unproduced business records (see Republic Natl. Bank of
N.Y. v Luis Winston, Inc., 107 A.D.2d 581; cf.
Galasso, Langione & Botter, LLP v Galasso, 89 A.D.3d
897; see generally Shen v Shen, 21 A.D.3d 1078).
Moreover, the referee's report also failed to identify
the documents or other sources upon which the referee based
his finding that the mortgaged premises should be sold in one
parcel, and failed to answer the court's specific
question of whether the mortgaged premises could be sold in
parcels. In confirming the report, the Supreme Court
improperly relied on the referee's inadequately supported
we remit the matter to the Supreme Court, Westchester County,
for a new report computing the amount due to the plaintiff in
accordance herewith, and determining whether the subject
premises can be sold in parcels, followed by further
proceedings in ...