Referees to Supervise Disclosure – A Brief Window For Review

Nasir v Tait,

___ AD3d ___,2015 NY Slip Op 04461 [2d Dept., 2015]

When disclosure is supervised by a referee (CPLR 3104), motions seeking review of the referee’s orders by the referring judge must be made “within five days after the order is made” (CPLR 3104 [d]). The referee here directed the plaintiff to provide authorizations for records of his treatment for diabetes, and the plaintiff moved for review of the order thirteen days after the date of the order. Supreme Court entertained the motion on its merits and modified the referee’s order.

The Appellate Division reversed. The five days in which to move runs from the making of the referee’s order, not the day it is entered, and the plaintiff offered no excuse for the failure to move timely. Supreme Court should not have entertained the motion on its merits.

Five days is a short time in which to move. The attorneys here had signed the referee’s order, and so there was no doubt that the parties were aware of it and had the full benefit of the five days. What, however, if the referee makes the order out of the parties’ presence?

It should also be noted that the referee’s order is not subject to direct appeal, since CPLR 3104 (d) specifies that review must be had by motion to the court in which the action is pending (Etzion v Etzion).

It is worth reviewing the procedure for supervision of disclosure by a referee. Pursuant to CPLR 3104, a court has discretion to appoint a referee to supervise disclosure, on motion of any party or witness, or on its own initiative without notice.  The statute specifies that the referee may be a judicial hearing officer or any named attorney to whom the parties may stipulate, but it is common for the court to appoint a referee on its own staff. A court may appoint a Court Attorney/Referee (or Judicial Hearing Officer) to supervise disclosure, without the consent of the parties (Llorente v City of New York , 60 A.D.3d 1003).  By contrast, a court may not appoint a private attorney to perform the same task (and be compensated by the parties) without their consent (See, Surgical Design Corp. v. Correa , 309 A.D.2d 800)

Supervision of disclosure by referee was before the Court of Appeals in 2008 in Underwriters at Lloyds v Occidental Gems, Inc., where the referee was a Court Attorney Referee (11 N.Y.3d 843). The case clarified certain procedural issues concerning the supervision of disclosure by referees.  In a footnote, the Court noted that a Referee to supervise disclosure normally does not need to render a report subject to confirmation.  The Referee renders an order, not a report.  Any party or witness can apply for review of the Referee’s order, by motion to the court in which the action is pending, within five days after the order is made.  As the Court noted in the footnote, “Bottom line, where the reference is made under CPLR 3104, there is no requirement that the referee’s order be confirmed by the court in the absence of a request for review by a party.”

If review of the referee’s order is sought, the trial court has broad discretion to substitute its own determination for that of the referee. In Underwriters at Lloyds v Occidental Gems the Court of Appeals specifically rejected the notion that the trial court is bound to affirm the referee’s determination so long as it had support in the record.