CPLR § 3104(a); § 4001; R. 4212; § 4317

CPLR § 3104 Supervision of disclosure

CPLR § 4001 Powers of referees

CPLR R. 4212 Advisory jury; referee to report

CPLR § 4317 When reference to determine may be used

Llorente v City of New York, 2009 NY Slip Op 02566 (App. Div., 2nd, 2009)

Although a court lacks the authority to sua sponte appoint a private
attorney to serve as a Referee to oversee discovery, and to be
compensated by the parties without their consent (see Surgical Design Corp. v Correa, 309 AD2d 800; Warycha v County of Westchester, 273
AD2d 434), here the Supreme Court did not refer the in camera review of
over 4,000 documents to a named private attorney, but rather to a Court
Attorney Referee pursuant to CPLR 3104(a). Therefore, consent of the
parties was not required.

Contrary to the plaintiffs' contention, the order dated
December 20, 2007, did not direct the Court Attorney Referee to "hear
and determine" the motions of the defendants City of New York,
Administration for Children's Services, and Little Flower Children's
Services (hereinafter the defendants) for protective orders. The order
expressly limited the Court Attorney Referee to "hear and report on whether or to what extent [the] defendants' motions for protective orders should be granted" (emphasis added) (see CPLR 4001; compare CPLR 4212, 4317). Accordingly, the Supreme Court's appointment of a Court Attorney Referee to oversee discovery was within its authority and was not an improvident exercise of discretion.