In July 2023, this court issued a decision granting summary judgment awarding a judgment of foreclosure and sale, in favor of plaintiff, Board of Managers of Cove Club Condominium, and against defendant, Cove Club Car Park. (See Board of Managers of Cove Club Condominium v Jade Car Park, LLC, 2023 NY Slip Op 50740(U), *5 [Sup Ct, NY County 2023].) The court ordered the appointment of a referee to compute the amount due to plaintiff (including interest and ongoing charges) and to "examine whether the subject premises can be sold in one or more parcels." (Id.)

The court appointed Jerry A. Merola, Esq., to serve as referee. The referee issued a four-paragraph report in March 2024. (See NYSCEF No. 45.) He reported that he "ascertained and computed the amount due to Plaintiff" for the various charges owed by defendant, "and that there is due to Plaintiff for such unpaid common charges, assessments, interest, and miscellaneous charges, (not including attorney fees) the total sum of $2,589,304.70" (id. at ¶ 2); that plaintiff is entitled to legal fees incurred as a result of defendant's default (id. at ¶ 3); and that upon "inquiry as to the advisability of selling the Subject Premises in parcels," he found "that the Subject Premises must be sold in one parcel" (id. at ¶ 4).

Plaintiff now moves to confirm the report, for a judgment of foreclosure and sale, and to appoint a referee to sell the premises. Defendant opposes. Defendant argues that it had no [*2]opportunity to submit evidence to the referee and that the record does not support the referee's report. On reply, plaintiff represents that it "has no knowledge as to whether the original Referee . . . notified Defendant and presented information pertaining to Plaintiff's calculation of the money owed."^[FN1] (NYSCEF No. 55 at ¶ 22.) But plaintiff contends that the referee was not required to hold a hearing and that, in any event, defendant has never disputed the amounts plaintiff claims are owed.^[FN2]

Under CPLR 4320, a court may designate a referee to hear and report factual findings and legal conclusions. The court should confirm a referee's report that is "substantially supported by the record," in which "the referee has clearly defined the issues and resolved matters of credibility." (Courtview Owners Corp. v Courtview Holding, B.V., 193 AD3d 1032, 1032 [2d Dept 2021].) The referee's failure to identify the evidence relied upon (see Citimortgage, Inc. v Kidd, 148 AD3d 767, 769 [2d Dept 2017]), or the absence of that evidence before the court (see Ridgewood Sav. Bank v Kapoor, 222 AD3d 797, 798-799 [2d Dept 2023]), are grounds to reject the report. In contrast, the referee's failure to hold a hearing or otherwise allow a party to submit evidence is not fatal if, on a motion to confirm the report, that party has an opportunity to present evidence to oppose the referee's recommended findings. (See Shultis v Woodstock Land Dev. Assoc., 195 AD2d 677, 678 [3d Dept 1993].)

The court concludes that the report should not be confirmed. The report is brief; does not "identify the documents or other sources" upon which the referee relied; and does not explain how those materials led the referee to his ultimate conclusion about the amount due. (Citimortgage, Inc., 148 AD3d at 769.) This shortcoming is exacerbated by the fact that plaintiff, although identifying what evidence it submitted to the referee (see NYSCEF No. 55 at ¶ 7), has not provided all of that evidence to this court. (See Ridgewood Sav. Bank, 222 AD3d at 798-799 [2d Dept 2023] [denying motion to confirm report when neither referee nor plaintiff submitted the documents upon which referee relied in making computations].) Moreover, the record does not reflect whether defendant even had an opportunity to submit evidence about the correct amount owed, much less to have that submission considered by the referee. In these circumstances, the court cannot determine whether the referee's report is substantially supported by the evidence submitted by both parties after a full opportunity to do so.

Accordingly it is

ORDERED that the motion to confirm the referee's report is denied; and it is further

ORDERED that the matter is referred back to referee Jerry A. Merola to hear and report in accordance with this court's July 2023 order; and the referee is directed to accept and consider renewed evidentiary submissions from plaintiff and defendant and to submit an amended report accordingly.