CPLR R. 4212

Koch v Sheresky, Aronson & Mayefsky LLP, 2018 NY Slip Op 03769 [1st Dept. 2018]

The court also properly denied plaintiff's motion for a hearing before an advisory jury pursuant to CPLR 4212. Plaintiff failed to explain the necessity for such a hearing or to substantiate her claim of bias on the part of the special referee, who had denied her motion for a protective order and directed her to appear for a deposition. Plaintiff's motion for the appointment of an advisory jury after the special referee denied her motion for a protective order suggests a strategy to avoid the discovery orders entered against her as a result of her willful noncompliance.

CPLR R. 4212

You don't see this rule too often, and rarely in this context. Pretty cool.

CPLR R. 4212 Advisory jury; referee to report.

Jones Inlet Mar., Inc. v Hydraulitall, Inc., 2010 NY Slip Op 02752 (App. Div., 2nd, 2010)

The plaintiff (hereinafter the Marina) commenced this action against
the defendants for breach of contract. In a companion action entitled

Hydraulitall,
Inc. v Jones Inlet Marina, Inc., which was commenced in the Supreme
Court, Suffolk County, under Index No. 14387/04 (hereinafter Action No.
1), and is based upon the same facts as this action, a jury determined
that the Marina breached the subject contract, and that Hydraulitall,
Inc. (hereinafter Hydraulitall), the defendant in this action, was
entitled to damages. The Supreme Court, purportedly relying upon CPLR
4212, treated the jury verdict in Action No.1 as an advisory verdict in
the instant action, and dismissed the Marina's complaint in the instant
action. However, in a companion appeal (see Hydraulitall, Inc. v
Jones Inlet Marina, Inc.,AD3d [decided herewith]), we reversed the
judgment entered in Action No. 1 based upon our conclusion that the
Supreme Court should have granted the Marina's motion, made at the close
of Hydraulitall's case, for judgment as a matter of law dismissing the
complaint in that action for failure to prove damages (id.).
Consequently, we reverse the judgment in the instant action and
reinstate the Marina's complaint.

CPLR 4212 provides:

"Upon the motion of any party as provided in rule 4015
or on its own initiative, the court may submit any issue of fact
required to be decided by the court to an advisory jury or, upon a
showing of some exceptional condition requiring it or in matters of
account, to a [*2]referee to report. An
order under this rule shall specify the issues to be submitted. The
procedures to be followed in the use of an advisory jury shall be the
same as those for a jury selected under article forty-one. Where no
issues remain to be tried, the court shall render decision directing
judgment in the action."

The Supreme Court did not
follow the procedure outlined in the statute since no order was ever
issued and the Supreme Court never specified to the jury the issue to be
decided. Instead, after the jury returned its verdict in Action No.1,
the Supreme Court simply treated that verdict as dispositive of the
instant action. This was error.

Moreover, in light of our determination in Action No. 1 that the
Supreme Court erred in denying the Marina's motion for judgment as a
matter of law for Hydraulitall's failure to make out a prima facie case
with respect to the issue of damages, it would be incongruous to hold
that it was nevertheless proper for the Supreme Court to utilize the
verdict in Action No. 1 as a basis for the dismissal of the complaint in
the instant action, even though the Marina did not expressly challenge,
on the companion appeal, the liability determination in Action No. 1
that it failed to comply with the terms of the contract.

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.