Article 43. Trial by A Referee

TRIAL BY A REFEREE

The Sections of Article 43. of the CPLR of New York:

CPLR Article 43 New York law for trial by referee
CPLR Article 43 New York law for trial by referee-reference point

NY CPLR § 4301. POWERS OF REFEREE TO DETERMINE

A referee to determine an issue or to perform an act shall have all the powers of a court in performing a like function;  but he shall have no power to relieve himself of his duties, to appoint a successor or to adjudge any person except a witness before him guilty of contempt.  For the purposes of this article, the term referee shall be deemed to include judicial hearing officer.

NY CPLR RULE RULE 4311. ORDER OF REFERENCE

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.

NY CPLR RULE RULE 4312. NUMBER OF REFEREES; QUALIFICATIONS

 1. A court may designate either one or three referees;  provided, however, a judicial hearing officer may be designated a referee, in which case there shall be only one referee.  Except by consent of the parties, no person shall be designated a referee unless he is an attorney admitted to practice in the state and in good standing.  Where a referee may be designated by the parties, they may designate any number of referees.

2. Except in matrimonial actions or where the reference is to a judicial hearing officer, a person to whom all the parties object may not be designated as a referee.  In matrimonial actions, only a judicial hearing officer or a special referee appointed by the chief administrator of the courts may be designated to determine an issue.  In a matrimonial action the court shall not order a reference to a referee nominated by a party.

3. No person shall serve as referee who holds the position of court clerk, or clerk, secretary or stenographer to a judge;  or who is the partner or clerk of an attorney for any party to the action or occupies the same office with such attorney, except as provided in paragraph five of this rule.

4. A judge shall not serve as a referee in an action brought in a court of which he is a judge except by the written consent of the parties, and, in that case, he cannot receive any compensation as referee.

5. In uncontested matrimonial actions, a court clerk, law secretary, or any other non-judicial employee of the court, who is an attorney in good standing admitted to practice in the state, may be appointed by an administrative judge to serve without fee as a referee for the purpose of hearing and reporting to the court.

NY CPLR RULE RULE 4313. NOTICE

Except where the reference is to a judicial hearing officer or a special referee, upon the entry of an order of reference, the clerk shall send a copy of the order to the referee.  Unless the order of reference otherwise provides, the referee shall forthwith notify the parties of a time and place for the first hearing to be held within twenty days after the date of the order or shall forthwith notify the court that he declines to serve.

NY CPLR RULE RULE 4314. SUCCESSOR REFEREE

Upon being notified that a referee declines or fails to serve, or in the case of the death, resignation or removal of a referee, or if a new trial is granted after a reference, on motion of any party or on its own initiative, the court may designate a successor referee, unless a stipulation upon which the order of reference is based expressly provides otherwise.

NY CPLR RULE RULE 4315. REFEREE TO BE SWORN

A referee, other than a judicial hearing officer or a special referee, before entering upon his duties, shall be sworn faithfully and fairly to do such acts and make such determination and report as the order requires.  The oath may be administered by any person authorized to take acknowledgments of deeds by the real property law.  The oath may be waived upon consent of all parties.

NY CPLR RULE RULE 4316. PROCEDURE WHERE MORE THAN ONE REFEREE

Where the reference is to more than one referee all must meet together and hear all the allegations and proofs of the parties;  but a majority may appoint a time and place for the trial, decide any question which arises upon the trial, sign a report or settle a case.  Any of them may administer an oath to a witness;  and a majority of those present at a time and place appointed for the trial may adjourn the trial to a future day.

NY CPLR § 4317. WHEN REFERENCE TO DETERMINE MAY BE USED

(a) Upon consent of the parties.  The parties may stipulate that any issue shall be determined by a referee.  Upon the filing of the stipulation with the clerk, the clerk shall forthwith enter an order referring the issue for trial to the referee named therein.  Where the stipulation does not name a referee, the court shall designate a referee.  Leave of court and designation by it of the referee is required for references in matrimonial actions;  actions against a corporation to obtain a dissolution, to appoint a receiver of its property, or to distribute its property, unless such action is brought by the attorney-general;  or actions where a defendant is an infant.

(b) Without consent of the parties.  On motion of any party or on its own initiative, the court may order a reference to determine a cause of action or an issue where the trial will require the examination of a long account, including actions to foreclose mechanic’s liens;  or to determine an issue of damages separately triable and not requiring a trial by jury;  or where otherwise authorized by law.

(c) Transcript.  Unless otherwise stipulated, a transcript of the testimony together with the exhibits or copies thereof of the issue heard before the referee shall be provided to all the parties involved upon payment of appropriate fees.

NY CPLR § 4318. CONDUCT OF TRIAL

Unless otherwise specified in the order of reference, the referee shall conduct the trial in the same manner as a court trying an issue without a jury.  The provisions of article forty-four applicable to trial by the court shall apply to a reference pursuant to this article.

NY CPLR § 4319. DECISION

The decision of a referee shall comply with the requirements for a decision by the court and shall stand as the decision of a court.  Unless otherwise specified in the order of reference, the referee shall file his decision within thirty days after the cause or matter is finally submitted.  If it is not filed within the required time, upon the motion of a party before it is filed, the court may grant a new trial and, in that event, the referee shall not be entitled to any fees.

NY CPLR § 4320. REFERENCE TO REPORT

(a) Conduct of trial.  A referee to report shall conduct the trial in the same manner as a court trying an issue without a jury.

(b) Report;  transcript.  The referee shall file his report, setting forth findings of fact and conclusions of law, within thirty days after the cause or matter is finally submitted.  Unless otherwise stipulated, a transcript of the testimony together with the exhibits or copies thereof shall be filed with the report.

NY CPLR RULE RULE 4321. FEES AND EXPENSES

1. An order or a stipulation for a reference shall determine the basis and method of computing the referee’s fees and provide for their payment.  The court may make an appropriate order for the payment of the reasonable expenses of the referee.  Unless the court otherwise orders or the stipulation otherwise provides, such fees and expenses of the referee shall be taxed as costs.

2. This section shall not apply where the reference is to a judicial hearing officer.

Updated: July 12, 2019.

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