Pro-Biz Enterprises, Inc. v. Kozan

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.