Barrett v. Toroyan

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered December 13, 2006, which granted the motion by the Delma defendants and individual defendants Toroyan, Shawwa and Khoury to confirm the report of the Special Referee, affirmed, without costs.

The Special Referee found that Delma Associates had advanced no money for litigation costs of the individual defendant directors. A referee’s report should be confirmed if its findings are supported by the record (Baker v Kohler, 28 AD3d 375 [2006], lv denied 7 NY3d 885 [2006]; Freedman v Freedman, 211 AD2d 580 [1995]). In light of plaintiffs dilatory conduct in pursuing discovery, the Special Referee properly declined to allow further discovery before the hearing proceeded (see Forshay v Star Dairy, 187 AD2d 838 [1992], lv denied 81 NY2d 818 [1993]).

*302The dissent would deny confirmation of that part of the Special Referee’s report relating to the $177,000 paid by Delma Associates to Winston & Strawn and remand the matter for further proceedings. Such result is based on the conclusion that since Delma Associates paid that amount to Winston & Strawn, which discounted the balance of its $230,000 bill, and since defendants submitted no other evidence regarding this payment, it would appear that at least some of this payment was advanced for the legal expenses of the individual defendants. However, aside from impermissibly shifting the burden of proof on the issue to defendants, such conclusion seemingly accepts plaintiffs speculative argument that “at least some of the legal work that Winston and Strawn performed must have been undertaken on behalf of’ the individual defendants, which argument has no support in the record. Despite having had ample opportunity to do so, plaintiff presented no testimony or other evidence that could permit an inference that any portion of the $177,000 paid to Winston & Strawn was made on behalf of the individual defendants. As the motion court held, it would not allow plaintiff to use defendants’ motion to confirm the Special Referee’s report as a third bite at the apple in order to obtain discovery that he was dilatory in seeking. The dissent would now give plaintiff a fourth bite at the apple to present a case that, despite ample opportunity to do so, he failed to present before the Special Referee.

We have considered plaintiffs remaining contentions and find them without merit. Concur—Andrias, J.P., Gonzalez, Sweeny and Malone, JJ.