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.
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.
Alleyne v Grant, ___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00321 [2nd Dept., 2015]
Where the parties have consented to trial by a referee to hear and determine (rather than to merely hear and report) the determination of the referee “shall stand as the decision of a court.” (CPLR 4319) Therefore, no motion to confirm the determination is necessary.