Opinion
August 3, 1987
Appeal from the Supreme Court, Nassau County (Kelly, J.).
Ordered that the order entered January 9, 1986, is affirmed, insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order dated September 2, 1986, is modified, on the law, by deleting the provision thereof fixing the referee's fee in the sum of $1,750, substituting therefor a provision fixing the referee's fee in the sum of $100, and reducing the amount for which the clerk is to enter judgment in favor of the referee accordingly; as so modified, the order dated September 2, 1986, is affirmed, without costs or disbursements.
The record, and in particular, the plaintiff's own affidavits, indicated that due to the plaintiff's conduct, continued representation by his attorney would have been unproductive, and any progress in completing the simplest steps of litigation and the parties' depositions would have been impossible. Under the circumstances herein, the court was fully justified in relieving the plaintiff's counsel of a duty to continue to represent him. The court was warranted in appointing a referee to supervise the depositions (see, CPLR 4311; 4 Weinstein-Korn-Miller, N.Y. Civ Prac ¶¶ 4212.07, 4311.01; cf., Korobkin v. Chalek, 13 Misc.2d 582, 583, affd 7 A.D.2d 924), and it did not abuse its discretion, under the circumstances, in providing that the plaintiff bear the full costs and expenses of the referee (see, CPLR 4321; 4 Weinstein-Korn-Miller, N.Y. Civ Prac ¶¶ 4321.01-4321.03).
However, the court did not comply with the statutory requirements in fixing the referee's compensation. Under ordinary circumstances, a referee's compensation is fixed at a rate of $50 "for each day spent in the business of the reference" (CPLR 8003 [a]), unless the court by a prior order, or the parties by stipulation have provided for a different compensation (see, CPLR 8003 [a]; 4 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 4321.02; Scher v. Apt, 100 A.D.2d 582, 583, lv dismissed 63 N.Y.2d 866, rearg denied 64 N.Y.2d 755). Here, the court's order of reference did not set forth or suggest a rate of compensation. Following the depositions, the referee submitted a statement averring that he had spent "in excess of eight hours" on the case, and requested compensation of $1,750. Because no provision to vary the compensation was made prior to the referee's performance of his duties, the fee must be fixed at the statutory rate, even though that rate is "admittedly inadequate" (Scher v. Apt, supra, at 583). The referee's fee is reduced accordingly. We find no error with the court reporter's fee, as there is no similar statutory or policy restriction. We have considered the plaintiff's remaining contentions and find them to be without merit. Thompson, J.P., Brown, Lawrence and Eiber, JJ., concur.