ROSENBLOOM v. GURARY

The motion court, having found that the referee had clearly defined the issues, resolved matters of credibility, and made findings substantially supported by the record ( see Poster v Poster, 4 AD3d 145, 145, lv denied 3 NY3d 605; Kaplan v Einy, 209 AD2d 248, 251), acted appropriately in adopting the conclusion of the referee's report as derived from the hearing, since the parties waived the filing of the transcript ( see Halperin v Halperin, 282 AD2d 340, 341).

Based on the evidence before it, the motion court properly confirmed the referee's findings awarding surcharges for management fees, the payment to Tema Ltd., and the loan repayment to Eichenstein. The court also properly determined that the imposition of surcharges upon the corporate defendants was unwarranted, since there was insufficient evidentiary basis to join the Gurary defendants, who managed the Luba Corporation, a separate entity, with the corporate defendants in which the Gurary defendants also had an interest and from which they had borrowed money in order to prevent foreclosure of Luba's building. Finally, the motion court properly confirmed the special referee's findings disallowing additional surcharges in the amount of $1,048,000 for alleged rental expenses, repair and maintenance expenses, or decreases in rental income ( see Business Corporation Law §§ 624, 714), and properly exercised its discretion in not awarding plaintiffs attorneys' fees ( see Business Corporation Law § 626 [e]; First Westchester Natl. Bank v Olsen, 25 AD2d 661, affd 19 NY2d 342).