Roller v. Buchheit

Oct 1, 2002
Versions:298 A.D.2d 862
747 N.Y.S.2d 825

—Appeal from an order of Supreme Court, Erie County (Makowski, J.), entered August 28, 2001, which granted the motions of respondents and a nonparty witness and confirmed the report of the Judicial Hearing Officer.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Robert E. Roller, Richard T. Wolney and *863Robert G. Stahl (petitioners) appeal from an order granting the motions of respondents and a nonparty witness and confirming the report of the Judicial Hearing Officer appointed to hear and report on questions of privilege relating to the nonparty witness. The record does not support petitioners’ contention that the Judicial Hearing Officer exceeded the scope of the reference (see Daly v Messina, 228 AD2d 542, 543). In addition, Supreme Court properly rejected petitioners’ objection to the report arising from the failure of the Judicial Hearing Officer to conduct an evidentiary hearing. Petitioners acquiesced in the procedure adopted by the Judicial Hearing Officer prior to the issuance of his report. “[T]he parties charted their own course of procedure and [petitioners] may not now complain” (John Eric Jacoby, M.D., P.C. v Loper Assoc., 249 AD2d 277, 278). Finally, the findings of the Judicial Hearing Officer are supported by the record and thus the court properly confirmed his report (see Namer v 152-54-56 W. 15th St. Realty Corp., 108 AD2d 705). Present — Green, J.P., Wisner, Scudder, Burns and Gorski, JJ.