CPLR § 3104 Supervision of Disclosure
Etzion v Etzion, 2011 NY Slip Op 04197 (App. Div., 2nd 2011)
Both the underlying order dated January 4, 2010, limiting discovery, as well as the order appealed from, which denied the plaintiff's motion, in effect, to vacate the determination set forth in the order dated January 4, 2010, were made by a referee whom the parties had stipulated would be assigned the task of supervising pretrial discovery in this action (see CPLR 3104[b]). Pursuant to CPLR 3104(d), a party may make a motion seeking review of a referee's order regarding discovery, which "shall be . . . made in the court in which the action is pending within five days after the order is made." The record indicates that the plaintiff did not seek review, by the trial court, of either the order dated January 4, 2010, or the order appealed from, as required by CPLR 3104(d). "The specific language of CPLR 3104(d) mandating review in the court in which the action is pending precludes this court from entertaining a direct appeal from an order of a judicial hearing officer designated as a referee to supervise disclosure" (Crow-Crimmins-Wolff & Munier v County of Westchester, 110 AD2d 871, 873). Accordingly, the appeal must be dismissed (see Krygier v Airweld, Inc., 176 AD2d 701; Crow-Crimmins-Wolff & Munier v County of Westchester, 110 AD2d at 872-873; Matter of Westchester Tit. & Trust Co., 260 App Div 1055).
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