First Data Merchant Services Corp. v. One Solution Corp.

In an action, inter alia, to recover damages for breach of contract, the defendant third-party plaintiff One Solution Corporation, doing business as Simply One Solution, doing business as Joe Momma Computers, appeals from a judgment of the Supreme Court, Nassau County (Schellace, R.), entered July 30, 2003, which is in favor of the third-party defendant American Express Travel Related Services Company, Inc., doing business as American Express Merchant Services and against it on the counterclaim of that third-party defendant in the principal sum of $37,138.29. Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for a new hearing and determination before a different referee. In this action, the order of reference of the Supreme Court, [535] Nassau County, entered November 7, 2002, authorized the Referee to hear and determine the accounting issues pertaining to the counterclaim of the third-party defendant American Express Travel Related Services Company, Inc., doing business as American Express Merchant Services (hereinafter Amex), for chargebacks pursuant to CPLR 4317 (b). Since the scope of a referee’s duties are defined by the order of reference (see CPLR 4311; Rihal v Kirchhoff, 274 AD2d 567 [2000]; Al Moynee Holdings v Deutsch, 254 AD2d 443 [1998]; Lloyds Bank v Kahn Lbr. & Millwork Co., 220 AD2d 645 [1995]), the Referee was without authority to determine the issue of liability between Amex and the defendant third-party plaintiff One Solution Corporation,doing business as Simply One Solution,doing business as Joe Momma Computers. Accordingly, the judgment must be reversed and the issue of an accounting remitted to a different referee for a new hearing and determination. The appellant’s remaining contentions either are unpreserved for appellate review or without merit. Santucci, J.P., Luciano, Rivera and Fisher, JJ., concur.