1605 Putnam Avenue Realty Corp. v. Suey Kee Huey

—Orders, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about January 21 and February 10, 1993 in a shareholders derivative action, denying plaintiffs’ motion to disaffirm the report of the Special Master and adhering to the January 21 decision which sua sponte confirmed the report, granted a money judgment for the Special Master’s fee, and directed the clerk to enter judgment dismissing both the complaint and the counterclaims, unanimously reversed, on the law and on the facts and in the exercise of discretion, without costs, the Special Master’s report disaffirmed, the money judgment for the Special Master’s fee vacated, and the matter remanded for a proper accounting.

The record on appeal reveals that plaintiffs never received a proper accounting as ordered by the IAS Court in confirming the Judicial Hearing Officer’s report, and that at the proceeding before the Special Master, defendant was allowed to patently forestall and evade efforts to hold a proper accounting. Accordingly, there was no basis in the record for the subsequent conclusion by the Special Master to dismiss the complaint, and the IAS Court’s confirming of the Special Master’s report and dismissal of the complaint was error. However, the court did not err in denying plaintiffs’ request for entry of a money judgment, since there is no basis in the record for fixing an amount.

On the issue of the Special Master’s fee, the record does not reflect an agreement on the part of plaintiffs to defray any of such costs, and it was improper for the IAS Court to grant a judgment against plaintiffs for a portion of the fee. Concur— Ellerin, J. P., Kupferman, Ross, Nardelli and Williams, JJ.