Lipton v. Lipton

• Decision Date: 28 May 1985
• Citation: 128 Misc.2d 528,489 N.Y.S.2d 994
• Parties: Saul LIPTON, Plaintiff, v. Sandra LIPTON, Defendant.
• Court: New York Supreme Court

Page 994

489 N.Y.S.2d 994

128 Misc.2d 528

Saul LIPTON, Plaintiff, v. Sandra LIPTON, Defendant.

Supreme Court, Nassau County Special Term, Part 5.

May 28, 1985.

Meyerson, Resnicoff & Brawer, Great Neck, for plaintiff.

Alan K. Hirschhorn, P.C., Carle Place, for defendant.

ARTHUR D. SPATT, Justice.

This is a matrimonial action which was assigned to the Hon. John W. Burke for trial. An uncontested divorce was granted after an inquest before Justice Burke on July 5, 1984. All other outstanding issues, including the financial issues, were referred to a judicial hearing officer with the consent of the parties. This reference was effectuated by an order of this Court dated July 19, 1984 (Spatt, J.) which provides, in part, as follows:

"The said Judicial Hearing Officer is to hear and determine all the issues in this case, other than divorce. Trial is set down for October 11, 1984."

On October 17, 1984, after several days on trial, the parties appeared before the judicial hearing officer and submitted a stipulation of settlement. A hearing was conducted with regard to this settlement. The stipulation of settlement was eighteen pages in length, dated October 17, 1984, and executed by both parties before a notary. Both parties took the witness stand and testified as to their knowledge of and assent to the terms of the agreement. At the conclusion of the proceedings that day, the Court ordered the parties to return to court at an adjourned date with a final order to be signed by the judicial hearing officer.

At the outset of the continued hearing held on November 13, 1984, the judicial hearing officer stated that the defendant-wife had telephoned his home and stated that she was dissatisfied with some terms of the stipulation of settlement. He advised the defendant that he would not discuss the matter with her and that she could make any statement she wanted in court on the next adjourned date.

The judicial hearing officer then heard testimony from the defendant as to the reasons why she sought to set aside the stipulation of settlement. Thereafter, defendant's counsel moved to set aside the stipulation of settlement. After hearing argument from both counsel, the judicial hearing officer stated that he wanted memoranda of law from both parties as to his "authority to set aside the stipulation" on the ground of fraud.

On December 5, 1984, the judicial hearing officer ruled that he had jurisdiction to entertain defendants' motion to set aside the stipulation of settlement. Despite plaintiff's objection, the hearing proceeded. After testimony was taken, the judicial hearing officer granted defendant's motion to set aside the stipulation of settlement and set a new trial date of January 16, 1985.

The instant motion was then instituted by plaintiff-husband by order to show cause dated January 2, 1985 (Burstein, J.). Plaintiff moves for the following relief:

1. To declare that the judicial hearing officer exceeded his authority by conducting a hearing on the subject of whether or not a stipulation of settlement should have been set aside.

2. Staying all proceedings currently pending before the judicial hearing officer.

3. Declaring that the action is resolved and directing entry of a judgment of divorce, pursuant to the inquest before the Hon. John W. Burke on July 5, 1984, and the stipulation of the parties dated October 17, 1984.

4. Directing the defendant to execute all necessary papers to permit the parties to obtain a home equity loan.

5. Appointing a different judicial hearing officer.

6. Permitting the plaintiff-husband to continue to comply with the support provisions of the stipulation of settlement until this matter is resolved; or, in the alternative, directing the defendant-wife to utilize certain monies in custodial accounts for the benefit of the children.

Despite the numerous issues raised by both plaintiff and defendant in their moving and opposition papers, this Court's inquiry is a limited one. The plaintiff contends, basically, that the judicial hearing officer, appointed by this Court upon the consent of the parties to hear and determine "all the issues in this case, other than divorce", does not have the authority to determine whether a stipulation of settlement entered into before him should be set aside.

For the purpose of this motion, this Court's inquiry into the plaintiff's multiple prayers for relief can be condensed into two questions:

1. Does the judicial hearing officer have the authority to vacate a stipulation of settlement entered into before him?

2. If the judicial hearing officer does have such authority, can this Court review his substantive determinations and/or decisions?

Chapter 840 of the Laws of 1983, which created the judicial hearing officer program, was introduced at the request of the Chief Judge of the State and the Chief Administrative Judge. The purpose of the measure was to implement the recommendations of the Chief Judge's Committee to Utilize the Services of Retired Judges. The Committee's principal recommendation, codified by the legislation, was to permit willing former judges, certified as mentally and physically capable, to serve as judicial hearing officers. In that role, they were, among other things, to "be tapped to serve as referees in civil matters". 1983 Legislative Annual, Memorandum of The Office of Court Administration, Chapter 840, p. 362. See also Governor's Executive Memorandum on approving L.1983, c. 840 McKinney's 1983 Session Laws of New York, p. 2813.

Chapter 840 of the Laws of 1983 added Article 22 to the Judiciary Law, and amended a number of provisions of the CPLR and CPL. With respect to civil proceedings, CPLR 3104, 4201, 4301, 4311, 4317, 4318 and 4320 were amended to incorporate judicial hearing officers in all the provisions that related to the role of referee. Significantly, CPLR 4301 provides that "the purposes of this article, the term referee shall be deemed to include Judicial Hearing Officer." Thus, in civil proceedings, judicial hearing officers possess the same powers as referees and may, therefore, be assigned to perform the same functions with the same authority as referees.

Referees properly assigned to determine issues in a civil case have powers identical to those of a Justice of the Supreme Court. Buxbaum v. Buxbaum, 118 Misc.2d 348, 460 N.Y.S.2d 414 (Sup.Ct. Kings Co.1983); 4 Weinstein-Korn-Miller, N.Y.Civ.Prac. § 4001.4. CPLR 4301 provides that a "referee to determine an issue ... shall have all the powers of a court in performing a like function ..." Section 4318 indicates that "otherwise specified in the order of reference, the referee shall conduct the trial in the same manner as a court trying an issue without a jury." CPLR 4319 provides that "decision of a referee shall comply with the requirements for a decision by the court and shall stand as a decision of the court." (emphasis supplied)

Since the determinations of a judicial hearing officer are equivalent to those of a Justice of the Supreme Court, this Court cannot interfere with his substantive decisions concerning the issues referred to him. ¹ This Court can, however, make a determination concerning the jurisdiction or authority of the judicial hearing officer ².

In the first instance, it is proper for this Court to pass upon the issue of whether the judicial hearing officer had the authority to entertain certain issues in a case such as this in which the issues wer delineated in an order of reference. A referee or judicial hearing officer's authority is derived from the order of reference and is limited by its terms as well as by the statutes and rules authorizing the particular reference. 4 Weinstein-Korn-Miller, N.Y.Civ.Prac. § 4311.03. In addition, justices of this court have the authority to remove and appoint successors to referees and judicial hearing officers, where warranted. CPLR 4314.

When the particular powers or jurisdiction of the judicial hearing officer have been circumscribed by the order of reference, there should be no departure from the terms of the order, even at the request of both parties, without Court approval. 4 Weinstein-Korn-Miller, N.Y.Civ.Prac. § 4311.03. The order of reference necessarily both prescribes and limits the authority and function of the referee or judicial hearing officer. A judicial hearing officer who attempts to determine matters not referred to him by the order of reference acts beyond and in excess of his jurisdiction. See L.H. Feder Corp. v. Bozkurtian, 48 A.D.2d 701, 368 N.Y.S.2d 247 (2d Dept.1975); Korobkin v. Chalek, 13 Misc.2d 582, 178 N.Y.S.2d 235 (Sup.Ct. Queens Co.1958) aff'd, 7 A.D.2d 924, 183 N.Y.S.2d 458 (2d Dept.1959).

This Court's power to make such a jurisdictional determination derives from the nature of referees and judicial hearing officers and their relationship to the Court. In the case In re Starr, 245 A.D. 5, 280 N.Y.S. 753 (2d Dept.1935), the Court examined the nature of the "official referee", a position quite similar to that of a judicial hearing officer. Official referees were retired justices empowered by former provisions of the Judiciary Law to act as Supreme Court Justices with respect to matters referred to them by a sitting justice and in accordance with other provisions of the law. This office was abolished by Article 6, § 35 of the New York State Constitution.

In In re Starr, supra, Justice Carswell discussed the nature and function of the official referee as follows:

"An official referee ... is required to be one who has had judicial experience; one who has mature and seasoned judicial discretion. In this respect, he differs from an ordinary referee ...

The Special Term can limit a reference to an official referee to report with his opinion, or it may make the reference one limited by the statutory exclusion of certain actions ... The official referee does not act to the exclusion of the Supreme Court, but as a supplement to it and upon its consent ... A...