The following numbered papers 71 to 95 read on this: motion by plaintiff for an order rejecting the report of Daniel Gordon, Referee and directing that the parties proceed to a valuation hearing for the subject premises pursuant to RPAPL 993(6); and cross-motion denying plaintiff’s motion to reject the Referee Report, vacating the Order of March 10, 2021, granting plaintiff summary judgment, vacating the Order of January 12, 2022, granting plaintiff an Order of Partition and Sale, confirming the Referee Report of August 23, 2023, finding lack of good faith negotiation by plaintiff, and dismissing the partition action pursuant to RPAPL §993(5)(f) PAPERS NUMBERED Notice of Motion, Affidavits, Exhibits ECF Nos. 71-77 Notice of Cross Motion, Affidavits, Exhibits ECF Nos. 79-93 Opposition to Cross Motion- Affidavits, Exhibits ECF No. 94 Reply Papers ECF No. 95 Upon the foregoing cited papers, it is hereby ordered that plaintiff’s motion for an order seeking, inter alia, the rejection of the report of Daniel Gordon, Referee, and defendant’s cross motion, inter, alia, denying plaintiff’s motion to reject the Referee Report, are decided as follows: The instant partition action concerned property purchased in 1970 by Gertrude Bennett and Winston Bennett, as tenants by the entirety. The Bennett’s purportedly divorced in 1974. A copy of the divorce decree was never provided as such it is unknown if either property ceded their interest to the other at the time of the divorce; or whether the divorce converted their title in the property to tenants in common, with each owning a fifty percent interest. Winston Bennett thereafter died intestate on April 30, 2009. No letters of administration or other evidence has been submitted that Winston A. Bennet was decedent’s sole heir entitled to decedent’s fifty percent interest, to Winston A. Bennett. The plaintiff herein alleges that Winston A. Bennett, by Deed dated August 21, 2019, transferred his interest in the property to Blackstone Realty Group, LLC, the price as recorded in ACRIS was eight thousand five hundred ($8,500.00) dollars Plaintiff further alleges that by deed dated August 13, 2020, Blackstone transferred its fifty-percent interest in the property to the plaintiff, as recorded in ACRIS for seventy thousand ($70,000.00) dollars. Gertrude Bennett died intestate in 2016, leaving defendant Diane Prince and her brother Anthony Jeffers, as the sole heirs of Gertrude Bennett and each obtained a twenty-five percent interest in the property. Plaintiff herein alleges that by deed dated August 10, 2020, it obtained a twenty-five percent interest in the property from Anthony Jeffers, as recorded in ACRIS for sixty-six thousand ($66,000.00) dollars. On August 24, 2020, plaintiff commenced the instant partition action concerning the real property located at 131-16 232nd Street, Queens, New York, Block 12942, Lot 41. Defendant herein, Diane J. Prince, filed her verified answer with counterclaims on September 25, 2020. Plaintiff filed a motion for discovery on October 5, 2020, and a motion for summary judgment and to appoint a referee on November 11, 2020, prior to any settlement conferences being held. Thereafter, an amended motion for summary judgment and to appoint a referee was filed on November 16, 2020, and opposed on January 20, 2021. On March 10, 2021, the court issued a decision granting plaintiff summary judgment and appointing a referee. On September 10, 2021, Dennis S. Cappello, Referee issued his report wherein he stated that attorneys for both parties were present at a hearing conducted on June 2, 2021, the testimony of both the plaintiff and defendant was waived, and various exhibits were introduced in evidence. Cappello determined that the property required a sale and partition as soon as practicable, that the plaintiff and defendant own the premises as tenants-in-common, with plaintiff owning seventy-five (75 percent) percent interest in the premises and defendant owning twenty-five (25 percent) percent interest in the premises. Cappello also determined that defendant was liable for her use and occupancy of the premises and collection of rents in the amount of two thousand ($2,000.00) dollars per month, which was equivalent to seventy-five (75 percent) of the fair market rental value of the premises and/or rents collection, from August 1, 2020, to the date of sale, which amounts would be deducted against defendant’s share of the ultimate sales proceeds. Lastly, he determined that plaintiff is not liable for any repair or maintenance charges inasmuch as defendant has had full occupancy of the premises. On September 15, 2021, plaintiff filed a motion to confirm the referee report and for a judgment of partition and sale. Several days later, defendant herein relived her attorney on September 17, 2021, and proceeded pro-se. On January 12, 2022, the court issued an order confirming the referee report of September 10, 2021, and granted plaintiff a judgment of partition and sale. It is represented that an initial settlement conference was thereafter scheduled and held on September 13, 2021, and defendant was accompanied by Gerard Deenihan, Esq. of the Legal Aid Society, of Counsel to Twyla Carter, Esq., to appear as Friend of the Court at the settlement conference. At that conference, defendant represents that all parties agreed that the action was an heirs’ property action under RPAPL §993. Thereafter, between September 13, 2022, and May 15, 2023, the parties attended several settlement conferences. Defendant, Prince represents to the court that she made three separate offers to purchase plaintiff’s seventy-five (75 percent) percent of the subject premises, among other offers. However, defendant’s offers were not accepted. Defendant further explained that plaintiff continued to rely on the Referee’s report of September 10, 2021, and the order to confirm the report dated January 12, 2022, accepting nothing less than market value for its share of the property. A final settlement conference was held on May 15, 2023, at which time no settlement was reached, and defendant credits the lack of fair and reasonable settlement offers as to why no settlement could ever be reached. With respect to the referee report of August 23, 2023, court attorney-referee Daniel S. Gordon, stated that the parties were given an opportunity to submit affidavits and briefs regarding the issue of whether the parties negotiated in good faith. Gordon determined that pursuant to RPAPL §993(5), a settlement conference should have taken place within sixty days after the date when a request for a judicial intervention is filed or on such adjourned date as had been agreed to by the parties. Therefore, a settlement conference should have taken place prior to plaintiff herein moving for an order of reference. At the initial conference, defendant Prince made an offer to purchase plaintiff’s interest in the property for $250,000, this offer was rejected, with plaintiff taking the position that it was entitled to 75 percent of market value, and plaintiff agreed to submit a counteroffer. Defendant herein has an appraisal done and the property was appraised at $695,000. It was undisputed that the open taxes on the property amounted to $82,720.94. After various attempts at settlement, the defendant increased her offer to purchase plaintiff’s share to $300,000 with the plaintiff to pay off 75 percent of the property tax arrears, this was also rejected. Gordon further determined that plaintiff’s argument that the settlement conference requirement was waivable was found to be without merit, they are mandatory and are thus not waivable. Moreover, plaintiff improperly moved for both an order of reference and then to confirm the referee’s report for the property to be sold at auction. It was further determined that considering the totality of the circumstances, the plaintiff failed to negotiate in good faith, and disregarded the fact that this was an action under RPAPL §993, the harm that it may cause defendant if the property was lost, the amount the defendant contributed to expenses such as maintenance and upkeep of the property, all of which was not considered during settlement negotiations. The report further emphasizes the fact that the property has been in the Prince’s family for over fifty years and it is the defendant’s family home where she and her son currently reside. Moreover, it was further stated that the order of reference and the motion to confirm the referee’s report was done prematurely as the requirements of RPAPL §993 were disregarded and not adhered to in this instance. In its present form, CPLR 3408 provides, in pertinent part, as follows: “(a) In any residential foreclosure action involving a home loan…in which the defendant is a resident of the property subject to foreclosure,…the court shall hold a mandatory conference…for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the court deems appropriate…. “(f) Both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible” (CPLR 3408 [a], [f] [emphasis added]). Considering all the evidence submitted herein by both movants, including the lack of submission of the Judgment of Divorce from the 1974 divorce proceeding of the Bennett’s, indicating the outcome of that proceeding and whether an equitable distribution was ever filed; the lack of proof that Winston A. Bennet was Winston Bennet’s sole heir; defendant’s allegation concerning the criminal propensity of Joseph Makhani, and his affiliation with Laurelton Estates, LLC in addition to Referee Gordon’s report, all lead to this court’s decision to grant defendant’s cross motion and deny plaintiff’s motion in its entirety. Moreover, considering the totality of the evidence herein, it is evident that plaintiff’s conduct did not constitute a meaningful effort at reaching a resolution under RPAPL 993 (see U.S. Bank v. Sarmiento, 121 AD3d 187 [2d Dept 2014]). Accordingly, it is ORDERED that, plaintiff’s motion is denied its entirety, and it is further ORDERED that, defendant’s cross motion is granted rejecting the referee’s report of August 23, 2023, finding a lack of good faith negotiations by plaintiff during mandatory settlement conferences, vacating the Order of March 10, 2021, granting plaintiff summary judgment, vacating the Order of January 12, 2022, granting Plaintiff an Order of Partition and Sale and confirming the Referee’s report of August 23, 2023, finding lack of good faith negotiations by plaintiff and dismissing the partition action. This constitutes the decision and order of the court. Dated: November 20, 2023
