Matter of Kohn v. Sanders

2017 NY Slip Op 5602, 152 A.D.3d 597, 55 N.Y.S.3d 671

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 2017
• Docket: 2016-06768
• Status: Published

Opinion

Appeal by the father from an order of the Family Court, Kings County (Denise M. Valme-Lundy, Ct. Atty. Ref.), dated May 17, 2016. The order dismissed the father’s petition for modification of an order of custody and visitation.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a new determination of the father’s petition.

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 not applicable here (see CPLR 4317; Matter of Rivera v Arocho, 120 AD3d 1350, 1351 [2014]; Matter of McClarin v Valera, 108 AD3d 719 [2013]; Matter of Stewart v Mosley, 85 AD3d 931, 932 [2011]). Here, the parties did not have an order of reference with respect to this proceeding. Thus, the Court Attorney Referee lacked jurisdiction to issue the order dated May 17, 2016 (see Matter of Rivera v Arocho, 120 AD3d at 1351; Matter of Aslan v Senturk, 116 AD3d 952 [2014]; Matter of Martinborough v Martinborough, 98 AD3d 511 [2012]; Matter of Gale v Gale, 87 AD3d 1011, 1011 [2011]), and we remit the matter to the Family Court, Kings County, for a new determination of the father’s petition.

In light of our determination, we need not reach the father’s remaining contentions.

Dillon, J.P., Roman, Miller and LaSalle, JJ., concur.