A Referee Must Stay Within The Confines Of The Order Of Reference

126 AD3d 921, ___ NYS2d ___ [2d Dept., 2015]

A referee takes his authority from the order of reference, and to the extent that he goes beyond the confines of the order he exceeds his authority. A reference to hear and determine can only be made on consent of the parties, and so where a referee to hear and report takes actions beyond merely reporting his findings he again exceeds his authority.

In this divorce action, certain of the issues were referred to a referee to hear and report, and his powers were therefore limited to doing just that: hearing the evidence and reporting his findings. The defendant wife sought to modify an earlier order of custody, and to stay an action in the Family Court. The order to show cause, including a TRO staying the Family Court proceeding, was presented to the referee rather than to the court, and he signed it. The parties had not consented to this expansion of the reference, and so the referee exceeded his authority. Supreme Court should have granted the plaintiff’s application to vacate the order to show cause.

A similar case was presented in Rihal v Kirchhoff, 274 A.D.2d 567 [2d Dept., 2000] where the Supreme Court had referred the issue of service to a referee to hear and determine. At the conclusion of the hearing, the Referee determined that jurisdiction had not been obtained. The plaintiff thereupon moved before the referee for an extension of time to serve, nunc pro tunc. The referee denied the motion. The Appellate Division held that since the reference did not include the issue of extension of time to serve, the referee was without authority to determine the issue, and vacated that portion of the Referee’s order.
It is far from clear, by the way, whether Supreme Court can delegate its power to stay a Family Court proceeding to a referee under any circumstances, even where the reference is to hear and determine.

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