Daly v. Messina

Jun 17, 1996
Versions:228 A.D.2d 542
644 N.Y.S.2d 778
644 N.Y.2d 778
1996 N.Y. App. Div. LEXIS 7073

Contrary to the plaintiff’s contention, the December 4, 1981, deed was properly reformed to reflect that the defendants Eugene Messina and Patrick Franzese each received a 44.4% *543interest and the plaintiff received an 11.2% interest in the property conveyed. The record demonstrates by "clear, positive and convincing evidence” (Amend v Hurley, 293 NY 587, 595; see also, Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219-220) that this was the intent of the grantor and the grantees and that the mistake was " 'in the reduction of [the deed] to writing, [a] mistake of the scrivener’ ” (Harris v Uhlendorf 24 NY2d 463, 467, quoting Bom v Schrenkeisen, 110 NY 55, 59; see also, Hart v Blabey, 287 NY 257, 262).

The Referee did not exceed the scope of his reference. Where a Referee’s reference is to hear and report on an issue, such reference "makes the referee a kind of assistant to the court; the referee conducts a hearing and reports his findings and conclusions back to the court” (Seigel, NY Prac § 379, at 571 [2d ed]; see also, CPLR 4212, 4320 [a]).

The plaintiff’s remaining contentions are either without merit or are not properly before this Court because they were raised for the first time in her reply brief (see, State Farm Fire & Cas. Co. v LiMauro, 103 AD2d 514, 521-522, affd 65 NY2d 369). Miller, J. P., Copertino, Santucci and Altman, JJ., concur.