Opinion
Submitted April 12, 2001.
June 11, 2001.
In an action to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Murphy, J.), dated November 3, 1999, which is in its favor and against the defendant in the sum of only $4,115 and directed it to pay 75% of the $18,000 referee's fee.
Jeffrey I. Klein, White Plains, N.Y., for appellant.
Levi Lubarsky Feigenbaum, LLP, New York, N.Y. (Richard F. Lubarsky of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, BARRY A. COZIER, JJ.
ORDERED that the judgment is modified, as a matter of discretion, by deleting the provision thereof apportioning the referee's fee 75% to the plaintiff and 25% to the defendant and substituting therefor a provision apportioning the fee 50% to the plaintiff and 50% to the defendant; as so modified, the judgment is affirmed, without costs or disbursements.
The finding of the referee, who was appointed to "hear and determine" (CPLR 4301), that the testimony of the plaintiff's witnesses was not credible, should not be disturbed on appeal (see, Matter of Krissler Bus. Inst. [King], 244 A.D.2d 486). The unambiguous language of the agreement at issue provided that the plaintiff would be paid upon payment to the defendant from the third-party telephone company (see, Matter of Wallace v. 600 Partners Co., 86 N.Y.2d 543, 548; W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162; Cannistra v. Kramer Shapiro, 242 A.D.2d 653, 654; see also, Menorah Nursing Home v. Zukov, 153 A.D.2d 13, 20; Schuler-Haas Elec. Corp. v. Aetna Cas. Sur. Co., 49 A.D.2d 60, affd 40 N.Y.2d 883). Thus, the referee properly calculated the amount of damages in accordance with the agreement.
Under the facts of this case, the allocation of the referee's fee between the parties was an improvident exercise of discretion. The fee should be divided equally between the parties (see, H Y Realty Co. v. Baron, 193 A.D.2d 429).
The plaintiff's remaining contentions are without merit.