Alleyne v. Grant
997 N.Y.S.2d 908
N.Y. App. Div.
2015
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MAXINE J. ALLEYNE, Appellant, v ERWIN E. GRANT, Respondent.

[997 NYS2d 908]

Appellate Division of the Supreme Court of New York, Second Department

In an action, inter alia, to impose a constructive trust upon certain real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated April 29, 2013, which denied her motion to confirm a determination of a Court Attorney Referee (Sunshine, Ct. Atty. Ref.), dated November 17, 2011, made after a hearing, that the plaintiff was the sole owner of certain real property, and granted the defendant’s cross motion, in effect, pursuant to CPLR 5015 (a) (4), to vacate the determination of the Court Attorney Referee.

Ordered that the order is reversed, on the law, without costs or disbursements, the plaintiff’s motion to confirm the determination of the Court Attorney Referee is denied as unnecessary, and the defendant’s cross motion, in effect, pursuant to CPLR 5015 (a) (4), to vacate the determination of the Court Attorney Referee is denied.

Since the order of reference in this action, made on consent, directed the Referee to hear and determine (see CPLR 4301), rather than hear and report on (see CPLR 4201), certain issues relating to the subject real property, a motion to confirm the Referee’s determination does not lie (see

;
; see also
;
). Accordingly, the plaintiff’s motion to confirm the Referee’s determination should have been denied as unnecessary (see generally
).

A referee derives authority from an order of reference by the court (see CPLR 4311, 4317;

;
;
). A referee “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” (
; see
). Here, the Referee did not exceed her jurisdiction in considering the ownership of the subject property, as it was relevant to the issues referred to the Referee to hear and determine (see
). Accordingly, the Supreme Court should have denied the defendant’s cross motion, in effect, pursuant to CPLR 5015 (a) (4) to vacate the determination of the Referee.

Rivera, J.P., Roman, Duffy and Barros, JJ., concur.