Sternberg v. Sternberg

88 A.D.2d 950, 451 N.Y.S.2d 187, 1982 N.Y. App. Div. LEXIS 17316

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1982
• Status: Published

Opinion

— Appeal by defendant from an order of the Supreme Court, Kings County (Imperato, R.), dated April 15, 1981, which, inter alia, awarded plaintiff $2,310, representing alimony and child support arrears. Order reversed, with $50 costs and disbursements, and matter remitted to Special Term for proceedings consistent herewith. On November 17,1980 Special Term (Rigler, J.), referred plaintiff’s motion to punish defendant for contempt of court for his failure to pay alimony and child support to a special referee “for hearing”. Following a hearing held pursuant to the November 17 reference, the special referee rendered his decision in which, inter alia, the defendant was adjudged in arrears and it was ordered that plaintiff “have execution therefor”. An order of reference to a referee to hear and determine is permissible only upon consent of the parties (CPLR 4317, subd [a]). It appears that defendant never consented to have this matter determined by a special referee. Accordingly, absent such consent, the reference “for hearing” must be deemed to have been one to hear and report. Since a hearing has already been held the matter must be remitted to Special Term to make its determination, following submission to it of a report by the special referee and such motions by the parties to confirm or disaffirm as they deem appropriate (see, generally, CPLR 4403). Lazer, J. P., Thompson, Bracken and Rubin, JJ., concur.