Pro-Biz Enterprises, Inc. v. Kozan

Appellate Division of the Supreme Court of New York

Pro-Biz Enterprises, Inc. v. Kozan

19 A.D.3d 1115, 797 N.Y.S.2d 205, 2005 N.Y. App. Div. LEXIS 6465

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 2005

StatusPublished

This text of 19 A.D.3d 1115 (Pro-Biz Enterprises, Inc. v. Kozan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pro-Biz Enterprises, Inc. v. Kozan, 19 A.D.3d 1115, 797 N.Y.S.2d 205, 2005 N.Y. App. Div. LEXIS 6465 (N.Y. Ct. App. 2005).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Michael L. McCarthy, J.H.O.), entered January 16, 2004. The order declared that the promissory note executed by defendant on August 29, 2001, is void and ordered it surrendered and cancelled.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Plaintiff commenced this action seeking judgment in the amount allegedly due on a promissory note executed by defendant. At the outset of a hearing before a judicial hearing officer (JHO), the parties agreed that the matter would be “heard and reported” by the JHO to Supreme Court. Although the record does not contain an order of reference defining the scope of the JHO’s authority (see CPLR 4301, 4311), the parties’ agreement in open court that the matter would be heard and reported by the JHO to the court established the scope of the JHO’s authority (see CPLR 2104; cf. Batista v Delbaum, Inc., 234 AD2d 45 [1996]; McCormack v McCormack, 174 AD2d 612, 613 [1991]). At the conclusion of the hearing, however, the JHO issued a decision and order determining the action, thereby exceeding his authority. We therefore reverse the order and remit the matter to Supreme Court for the JHO to issue a report to the court. Present—Pigott, Jr., PJ., Green, Gorski, Pine and Lawton, JJ.

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Appeal from an order of the Supreme Court, Erie County (Michael L. McCarthy, J.H.O.), entered January 16, 2004. The order declared that the promissory note executed by defendant on August 29, 2001, is void and ordered it surrendered and cancelled.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Plaintiff commenced this action seeking judgment in the amount allegedly due on a promissory note executed by defendant. At the outset of a hearing before a judicial hearing officer (JHO), the parties agreed that the matter would be “heard and reported” by the JHO to Supreme Court. Although the record does not contain an order of reference defining the scope of the JHO’s authority (see CPLR 4301, 4311), the parties’ agreement in open court that the matter would be heard and reported by the JHO to the court established the scope of the JHO’s authority (see CPLR 2104; cf. Batista v Delbaum, Inc., 234 AD2d 45 [1996]; McCormack v McCormack, 174 AD2d 612, 613 [1991]). At the conclusion of the hearing, however, the JHO issued a decision and order determining the action, thereby exceeding his authority. We therefore reverse the order and remit the matter to Supreme Court for the JHO to issue a report to the court. Present—Pigott, Jr., PJ., Green, Gorski, Pine and Lawton, JJ.

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Bluebook (online)

19 A.D.3d 1115, 797 N.Y.S.2d 205, 2005 N.Y. App. Div. LEXIS 6465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pro-biz-enterprises-inc-v-kozan-nyappdiv-2005.

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