From time to time Justices refer issues to Special Referees, who are court employees, or to Judicial Hearing Officers ("JHO's") to hear and report or to hear and determine.
Most references are to hear and report, meaning that the JHO/Referee holds an evidentiary hearing if required and issues a report containing recommended findings and conclusions. A transcript of the hearing can be produced, but its filing may be waived by the parties. After a report has been filed, notice is to be given to the parties of the filing. The plaintiff must move to confirm or reject all or part of the report within 15 days of the giving of notice. If plaintiff fails to so move, the defendant shall do so within 30 days. CPLR 4403; Uniform Rule 202.44 (a). A private referee, not a JHO or Special Referee, may also be appointed to supervise disclosure. CPLR 3104.
On a reference to determine, the JHO/Referee decides the matter referred. There is nothing for the referring Justice to confirm or reject. Any appeal is taken directly to the Appellate Division from the entered order or judgment of the JHO/Referee. Because of the constitutional right to a jury trial, the court's power to order references to determine is circumscribed. CPLR 4317. The court may order such a reference on consent (with a few exceptions) or in the case of a long account, or where otherwise constitutionally permitted, i.e., issues in which references were permitted historically. The parties may also, with few limits, designate their own referee.
An Order of Reference must make clear the exact issue being referred and any and all constraints on the JHO/Referee. The Rules of the Special Referees’ Part (Part SRP) provide that the referring Justice may, in his or her discretion, include in the Order of Reference a directive that a conference be held before the assigned JHO/Referee prior to the commencement of the hearing. See also the Uniform Rules of the Judicial Hearing Officers and the Special Referees .
The court, through its Special Referee Clerk (Room 119, 646-386-3028), will endeavor to identify all decisions in which a reference to a JHO/Referee is directed by a Justice and to calendar same promptly after issuance without the need for action by counsel. A box has been placed on the court's decision form ("gray sheet") so that the assigned Justice can use this means to notify the Special Referee Clerk that a reference is being directed. The Clerk will inform counsel of the issuance of the Order of Reference and forward a copy of an Information Sheet. However, as a safeguard to ensure against inadvertent delay, counsel must, as soon as possible after issuance of the decision (which will in most cases be posted on the court's website within hours after issuance), and in any event within 15 days from the date of the Order of Reference, serve on the Special Referee Clerk by fax (212-401-9186) or e-mail (email@example.com) a copy of the Information Sheet. The Information Sheet must be completed in full and transmitted as soon as possible to the Special Referee Clerk as directed in the Sheet.
It is vital that counsel set forth in the Information Sheet as accurately as possible the estimated length of the hearing and the number of witnesses to be called by each side; this information is required in order efficiently to assign the matter to a JHO/Special Referee. For the same reason, counsel shall state in the Information Sheet whether an interpreter of a language other than Spanish will be required for the hearing and, if so, what the language is; and, in a matrimonial case, whether the issue of custody has been resolved and whether there is now, or has previously been, an order of protection in place and, if so, the date of the order.
The matter will be placed on the Reference Calendar in the Special Referees Part (Part SRP) for some weeks after notice of the reference comes to the attention of the Special Referee Clerk and counsel will be informed of the date of the hearing. The Reference Calendar is conducted Monday through Thursday in Part SRP, Room 130 at 60 Centre Street, 9:30 AM. There, matters are assigned to an available JHO/Referee for a hearing. A matter placed on the calendar of Part SRP may be adjourned, but only under narrow circumstances. For more information, see the Rules of the Special Referees Part (Part SRP). Cases are assigned on the original hearing date in the Special Referees Part and, except in cases in which a prehearing conference has been directed in the Order of Reference, the reference hearing normally commences on the original date; attorneys should therefore be prepared to proceed on that date, with witnesses ready and evidence in order. If a prehearing conference has been directed, the conference will take place on the original appearance date in Part SRP; the date of the hearing will be fixed at the conference. The hearing will be conducted in the same manner as a trial before a Justice without a jury (CPLR 4318, 4320 (a))(the proceeding will be recorded by a court reporter, the rules of evidence apply, etc.).
Calendar information on cases pending in the Special Referees Part (Part SRP) and on those that have been referred therefrom to a JHO/Special Referee is recorded in the court's computer system and is reported in the Supreme Court Records On-Line Library ("SCROLL"). Each JHO/Referee is assigned to a separate Part and once a case has been referred to a JHO/Referee, it will be marked in the court's records as appearing in that JHO/Referee's Part. Information about individual cases assigned to JHO's/Referees can be obtained from the court's free case-tracking service, E-Track, and is also made available to attorneys' tracking services. For procedures before the JHOs and Special Referees, see the Uniform Rules of the JHOs & Special Referees.