Upon the following papers numbered 1 to 55 read on this motion for judgment of foreclosure and sale: Notice of Motion/ Order to Show Cause and supporting papers1-36 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting [*2]papers 37-46 ; Replying Affidavits and supporting papers 47-55; Other; it is

ORDERED that this motion by plaintiff Onewest Bank, FSB for an order pursuant to RPAPL § 1351 granting a judgment of foreclosure, approving plaintiff's request for attorney's fees and associated relief is granted.

This is an action to foreclose a "reverse mortgage"on residential real property located at 950 S Country Road, Bellport, Suffolk County, New York. The history of this action is unnecessary to set forth, other than to note that the case was before the court on July 28, 2016 for oral argument of plaintiff One West Bank's ("plaintiff") motion for summary judgment seeking dismissal and striking of defendant Daniel C. Katzel's ("defendant") answer and affirmative defenses, fixing the default of the non-answering defendants, and other associated relief (Mot. Seq. No.001) and defendant's cross-motion for summary judgment dismissing the action (Mot. Seq. # 002). In an oral decision placed upon the record, the court denied defendant's motion, granted plaintiff's motion and in doing so issued an order pursuant to RPAPL § 1321 appointing a referee to compute the amounts do plaintiff and to determine if the property showed be sold in parcels.

Plaintiff now moves to confirm the report of the referee, for a judgment of foreclosure and sale pursuant to RPAPL § 1351, setting plaintiff's counsel fees and associated relief. Defendant, by affirmation of counsel with attached exhibits, opposes the motion on the ground that the referee failed to give notice of a "hearing" before him to compute the amount due, additionally questioning plaintiff's claim for counsel fees.

Although defendant acknowledges that there is an affirmation of mailing by an attorney of plaintiff's law firm that states a notice of computation before the referee was mailed to him, defendant's counsel claims that he did not receive it. Plaintiff's submission of the affirmation of mailing raises the presumption that the Notice of Computation was properly mailed and received by defendant and his attorney, and a mere denial of receipt by defendant's counsel is insufficient to rebut this presumption (CPLR 2103[b][2]; see Kihl v. Pfeffer, 94 NY2d 118 [1999]; Engel v. Lichterman, 62 NY2d 943 [1984]; Terlizze v Robinson's Custom Service, Inc. 25 AD3d 457 [2d Dept 2006]; Mei Yun Li v Qing He Xu, 38 AD3d 731 [2d Dept 2007] ). This mere denial of receipt of the notice of the computation, in the face of the affirmation of mailing, does not raise an issue of fact that would require denial of the motion or a hearing (see Flushing Sav. Bank, FSB v. Colmar Realty, LLC, 121 AD3d 1040 [2d Dept 2014]).

Defendant's counsel attempts to take this out of the "mere denial" category by claiming that plaintiff's counsel's submission of the affirmation in support of its legal fees did not include a charge for preparing the mailing to him. This, he argues, is proof that the notice was not mailed to him. The claim is without merit. Clearly plaintiff's billing process is not designed to satisfy defendant's counsel's claim. There is no reason for plaintiff's counsel to list mailing to defendant's counsel, or bill separately for it, in the "package" of preparation of the oath and report for mailing to the referee and others, including defendant's counsel. Defendant's counsel's [*3]argument forms no basis to deny plaintiff's motion.

Further, in claiming that the report of the referee should be rejected and defendant should be given a further opportunity for a hearing on the computations before the referee, defendant offers no factual disputes or proof of error in the referee's report, or in the submissions of plaintiff upon which it was made. Whether or not defendant's counsel received the notice of computation, he certainly had the submissions and calculations upon which the referee's report was based when plaintiff submitted this motion. Although this gave him ample opportunity in his opposition to raise any insufficiencies or errors in the submissions by plaintiff to the referee and the court, as well as in the referee's report, defendant has provided no substantive claim of error or insufficiency (see Deutsche Bank National Trust Co. v Zlotoff, 77 AD3d 702 [2d Dept 2010]). Failing to do so he has waived such objections and establishes that there has been no prejudice to defendant.

The referee's report is only advisory, and is not binding upon the court, which remains the ultimate arbiter of the issue (see Citimortgage, Inc. v Kidd, 148 AD3d 767 [2d Dept 2017]). As pointed out in Wells Fargo v Zelaya, 56 Misc 3d 1219 (A) (Sup. Ct., Suffolk Co., 2017), this has been a long standing principle (see Marshall v. Meech, 6 Sickels 140, 51 NY 140, 143-4, [1872]; In re Paul Jones & Co., 117 AD775 [2d Dept 1907]).

As defendant has made no substantive objections and has not claimed that plaintiff's submissions on the issue of the amount to be calculated due and owing, or other amounts advanced by plaintiff on behalf of the subject property, are in error or insufficiently proven, the court reviewed these submissions on its own, independent of the referee's report. The court finds that they are sufficient to support plaintiff's application, although the court accepts all of the amounts submitted, except one, which it rejects upon its own calculations. The court rejects the calculation of interest accrued as of November 9, 2016 and substitutes in its place its own findings, as indicated below.

Defendant's argument that plaintiff's claim for counsel fees is insufficient and should be denied is without merit, as are the demeaning references to plaintiff's counsel's affirmation and to "law school '101'." Language used in the documents referring to "attorney's fees" relate to the reality of the practice of law. Clearly the expenses of non-lawyer staff of a law firm are expected as part of "attorney's fees." The court finds that the affirmation of counsel in support of their legal fees does give the amount of time and the rate at which that time was billed for the services rendered by both plaintiff's present law firm and the firm for which they substituted. In fact, the time billed and proven is over $3,000.00 more than plaintiff's law firm's ultimate request for fees. The determination as to the reasonableness of these fees are within the sound discretion of the court, and the court finds the sum of $3,500.00 requested reasonable and fair; that sum is approved.

However, the court's review of the submissions and calculations given in the affidavit of the employee of plaintiff's servicer, CIT Bank, N.A. ("CIT"), and accepted by the referee, shows the amount claimed as "principal advanced" in this "reverse mortgage" is incorrect. Plaintiff's Exhibit "B" claims the amount advanced was $106, 677.29, yet in paragraph 5 of her affidavit, the employee of CIT says that the mortgage was given to secure a principal amount of "up to a maximum principal sum of $106, 500.00," a fact confirmed by the mortgage (page 1 of Exhibit "2" to Exhibit "B"). Therefore the court calculates the interest owed upon the sum of $106, 500.00 at 6.83% per annum. Calculating to November 9, 2016, as did the referee and the employee of CIT, the court calculates the interest owed to be $40,119.60, not$40,263. 62. The court therefore determines the "Total" amount owed plaintiff as of November 9, 2016 to be $163,439.23. This sum is used in the final calculation and is reflected in modifications made by the court to plaintiff's proposed "long form" order, which is signed contemporaneously with this decision and order.

When calculating additional amounts due pursuant to the judgment of foreclosure, plaintiff and the referee are to refer to the maximum advance allowable under the mortgage of $106,500.00, not the larger figure submitted with this application and referee's report.

In all other regard, the court's calculations and determinations confirm the recommendations of the referee's report. Plaintiff's application for a judgment of foreclosure and sale is granted, and plaintiff's proposed "long form" order, as modified by the court, is signed contemporaneously with this decision and order.

This constitutes the Order and decision of the Court.