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THE REFEREE DID NOT HAVE JURISDICTION TO DISMISS THE FAMILY OFFENSE PETITION; NEITHER MOTHER NOR THE RESPONDENT HUSBAND (WHO DID NOT APPEAR) CONSENTED TO THE REFEREE’S HEARING THE MATTER; THE POWERS OF A REFEREE ARE EXPLAINED (FOURTH DEPT).

The Fourth Department, reversal the order by the referee dismissing the family offense proceeding, determined the referee was without jurisdiction to decide the matter because neither mother nor respondent husband (who did not appear) consented the referee hearing the matter:

“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” … . “Absent the parties’ consent to the reference, the . . . [r]eferee ha[s] the power only to hear and report [their] findings” … . An appropriate order of reference is thus an “essential jurisdictional predicate” to the authority of the referee to act … , and a referee “who attempts to determine matters not referred to [them] by the order of reference acts beyond and in excess of [their] jurisdiction” … .

Here, as noted, petitioner never consented to the Referee hearing the matter. Although CPLR 4317 (b) permits a referee to hear and determine an issue without the consent of the parties where the trial of the issue “will require the examination of a long account,” where the issue is one “of damages separately triable and not requiring a trial by jury,” or “where otherwise authorized by law,” none of those exceptions to the consent requirement applies here. Thus, the Referee “lacked jurisdiction to dismiss the petition” … , even without prejudice. We note in any event that, absent a fact-finding hearing, which did not take place, the Referee had no grounds to dismiss the petition based on insufficient evidence. Matter of Fournier v Perez, 2026 NY Slip Op 04063, Fourth Dept 6-26-26

Practice Point: Consult this decision for a concise explanation of the powers of a Family Court referee.

 

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