Opinion
07-12-2017
In the Matter of Allen KOHN, appellant, v. Rena SANDERS, respondent.
Allen Kohn, Brooklyn, NY, appellant pro se. Karen P. Simmons, Brooklyn, NY (Laura Solecki of counsel), attorney for the child.
Allen Kohn, Brooklyn, NY, appellant pro se.
Karen P. Simmons, Brooklyn, NY (Laura Solecki of counsel), attorney for the child.
Appeal by the father from an order of the Family Court, Kings County (Denise M. Valme–Lundy, Ct.Atty.Ref.), dated May 17, 2016. The order dismissed the father's petition for modification of an order of custody and visitation.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a new determination of the father's petition.
A referee derives authority from an order of reference by the court (see CPLR 4311 ), which can be made only upon consent of the parties, except in limited circumstances not applicable here (see CPLR 4317 ; Matter of Rivera v. Arocho, 120 A.D.3d 1350, 1351, 992 N.Y.S.2d 559 ; Matter of McClarin v. Valera, 108 A.D.3d 719, 968 N.Y.S.2d 899 ; Matter of Stewart v. Mosley, 85 A.D.3d 931, 932, 925 N.Y.S.2d 594 ). Here, the parties did not have an order of reference with respect to this proceeding. Thus, the Court Attorney Referee lacked jurisdiction to issue the order dated May 17, 2016 (see Matter of Rivera v. Arocho, 120 A.D.3d at 1351, 992 N.Y.S.2d 559 ; Matter of Aslan v. Senturk, 116 A.D.3d 952, 983 N.Y.S.2d 815 ; Matter of Martinborough v. Martinborough, 98 A.D.3d 511, 949 N.Y.S.2d 462 ; Matter of Gale v. Gale, 87 A.D.3d 1011, 1011, 929 N.Y.S.2d 495 ), and we remit the matter to the Family Court, Kings County, for a new determination of the father's petition.
In light of our determination, we need not reach the father's remaining contentions.
DILLON, J.P., ROMAN, MILLER and LaSALLE, JJ., concur.