Opinion
2012-07-5
Michael EDWARDS, appellant, v. Marvin WELLS, respondent.
Wittenstein & Associates, P.C. (Stephen D. Chakwin, Jr., New York, N.Y., of counsel), for appellant.
Appeal by the plaintiff from an order of the Supreme Court, Kings County (Schmidt, J.), dated February 8, 2011, which, sua sponte, confirmed a referee's report (Archer, Ct.Atty.Ref.), dated September 25, 2006, made after a hearing, recommending vacatur of the defendant's default in appearing or answering, and thereupon, inter alia, vacated the default and directed the defendant to serve and file an answer within 30 days from the date of the order.
ORDERED that on the Court's own motion, the notice of appeal from the order dated February 8, 2011, is deemed to be an application for leave to appeal from the order, and leave to appeal is granted ( see CPLR 5701[c] ); and it is further,
ORDERED that the order dated February 8, 2011, is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a determination on the merits of the defendant's pending motion.
“An order of reference shall direct the referee to determine the entire action or specific issues, to report issues, to perform particular acts, or to receive and report evidence only. It may specify or limit the powers of the referee and the time for the filing of his report and may fix a time and place for the hearing” (CPLR 4311). “[A] Referee's authority is derived from the order of reference and a Judicial Hearing Officer who attempts to determine matters not referred to him [or her] by the order of reference acts beyond and in excess of his [or her] jurisdiction” ( McCormack v. McCormack, 174 A.D.2d 612, 613, 571 N.Y.S.2d 498, citing CPLR 4311; see Carrero v. Dime Contrs., 29 A.D.3d 506, 507, 815 N.Y.S.2d 139;Matter of Eagle Ins. Co. v. Suleymanova, 289 A.D.2d 404, 404, 734 N.Y.S.2d 881). Here, the order of reference expressly limited the issue referred to a court attorney referee (hereinafter the referee) to a “Traverse Hearing on [the] issue of personal service.” The referee found that the defendant was properly served with process. However, she then, in effect, recommended that the Supreme Court grant the defendant's motion to vacate his default in appearing or answering on grounds unrelated to service. Thus, the referee exceeded her authority by determining matters not referred to her ( see CPLR 4311; Carrero v. Dime Contrs., 29 A.D.3d at 507, 815 N.Y.S.2d 139;Rihal v. Kirchhoff, 274 A.D.2d 567, 567, 715 N.Y.S.2d 849;see also Matter of Eagle Ins. Co. v. Suleymanova, 289 A.D.2d at 404, 734 N.Y.S.2d 881;McCormack v. McCormack, 174 A.D.2d at 613, 571 N.Y.S.2d 498). Accordingly, the Supreme Court erred in, sua sponte, confirming the referee's report, and, thereupon, inter alia, vacating the defendant's default, directing the defendant to serve and file his answer within 30 days from the date of the order, and setting the matter down for a preliminary conference. Since the defendant's motion to vacate his default in appearing or answering is still pending, we remit the matter to the Supreme Court, Kings County, for a determination of that motion on the merits.