Order of reference: CPLR R 4311

CPLR R. 4311

Matter of Gale v Gale, 87 AD3d 1011 (2nd Dept. 2012)

A referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon the consent of the parties, except in limited circumstances not applicable here (see CPLR 4317; Matter of Stewart v Mosley, 85 AD3d 931 [2011]; Allison v Allison, 28 AD3d 406, 406 [2006], cert denied 549 US 1307 [2007]; Fernald v Vinci, 302 AD2d 354, 355 [2003]; McCormack v McCormack, 174 AD2d 612 [1991]). Upon review of the record, we find that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there is no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here (see McCormack v McCormack, 174 AD2d 612 [1991]; cf. Allison v Allison, 28 AD3d at 406-407).

Contrary to the mother's contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge (see McCormack v McCormack, 174 AD2d at 613). To the extent that certain dicta in Chalu v Tov-Le Realty Corp. (220 AD2d 552, 553 [1995]) may suggest a different conclusion, it is not to be followed. [*2]

Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father's previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter.

Accordingly, the referee had no jurisdiction to consider the father's petitions related to custody and visitation and the mother's petition to modify custody, and the referee's order determining those petitions must be reversed (see Matter of Stewart v Mosley, 85 AD3d 931 [2011]; Fernald v Vinci, 302 AD2d at 355; McCormack v McCormack, 174 AD2d 612 [1991]).

Edwards v Wells, 2012 NY Slip Op 05387 (2nd Dept. 2012)

"An order of reference shall direct the referee to determine the entire action or specific issues, to report issues, to perform particular acts, or to receive and report evidence only. It may specify or limit the powers of the referee and the time for the filing of his report and may fix a time and place for the hearing" (CPLR 4311). "[A] Referee's authority is derived from the order of reference and a Judicial Hearing Officer who attempts to determine matters not referred to him [or her] by the order of reference acts beyond and in excess of his [or her] jurisdiction" (McCormack v McCormack, 174 AD2d 612, 613, citing CPLR 4311; see Carrero v Dime Contrs., 29 AD3d 506, 507; Matter of Eagle Ins. Co. v Suleymanova, 289 AD2d 404, 404). Here, the order of reference expressly limited the issue referred to a court attorney referee (hereinafter the referee) to a "Traverse Hearing on [the] issue of personal service." The referee found that the defendant was properly served with process. However, she then, in effect, recommended that the Supreme Court grant the defendant's motion to vacate his default in appearing or answering on grounds unrelated to service. Thus, the referee exceeded her authority by determining matters not referred to her (see CPLR 4311; Carrero v Dime Contrs., 29 AD3d at 507; Rihal v Kirchhoff, 274 AD2d 567, 567; see also Matter of Eagle Ins. Co. v Suleymanova, 289 AD2d at 404; McCormack v McCormack, 174 AD2d at 613). Accordingly, the Supreme Court erred in, sua sponte, confirming the referee's report, and, thereupon, inter alia, vacating the defendant's default, directing the defendant to serve and file his answer within 30 days from the date of the order, and setting the matter down for a preliminary conference. Since [*2]the defendant's motion to vacate his default in appearing or answering is still pending, we remit the matter to the Supreme Court, Kings County, for a determination of that motion on the merits.

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