In an October 12, 2010 decision by Justice Kapnick, the court granted a motion to reargue a motion to confirm a Special Referee’s report. Following a two-day hearing, the Special Referee found that a valid power of attorney existed and recommended that the court reinstate a previously vacated stipulation of settlement which ended litigation grounded upon an alleged fraudulent transfer of an apartment building. The defendants’ motion for reargument hinged on their position that the Special Referee should have, but failed to, consider whether or not the power of attorney was properly filed and recorded pursuant to EPTL 13-2.3. In confirming the Special referee’s report, the court initially determined that that issue was outside the court’s reference to the Special Referee. However, it subsequently concluded that reargument must be granted and the stipulation of settlement vacated because: (1) EPTL 13-2.3 applied to the transaction at issue and provides that no actions taken pursuant to a power of attorney are effective unless such power of attorney is duly recorded; and (2) there was no evidence in the record that the power of attorney had been recorded.
Webb v Smith, Sup Ct, New York County, October 12, 2010, Kapnick, J, Index No. 101329/00