This action was commenced on February 3, 2006 before the Honorable Sarah L. Krauss, who issued a Decision dated February 23, 2007 and an Order dated March 1, 2007 for referral to a Judicial Hearing Officer (hereinafter "J.H.O.") to "Hear and Report". On January 3, 2008, J.H.O. Leon Deutsch issued a report with a recommendation. The Defendant (hereinafter "Husband") now makes this motion to confirm said Report and Plaintiff (hereinafter "Wife") opposes.

The procedural history for this matter is long and complex and the entirety is not relevant to this application. The portions germane to this application are as follows: The Defendant "appeared" by counsel on the date of the Preliminary Conference, April 4, 2006, and counsel conceded service of the summons and complaint. Said counsel was thereafter relieved and Justice Krauss continued the case with various orders being [*2]entered including pendente-lite support, dated May 17, 2006, and issued a bench warrant for Husband, dated June 26, 2006. Thereafter the Husband retained new counsel and a motion was made, on August 16, 2006, to vacate his default on the grounds that the court lacked jurisdiction over him, as he had not been served. Justice Krauss, in a 19-page decision dated February 23, 2007 found that there were conflicting affidavits as to service and the issue could not be resolved on papers.

The Order, dated March 1, 2007, states that the issues before the J.H.O. are "(W)hether the Court acquired jurisdiction over him based on his prior attorney's concession of service or based upon prior service upon him [indicating defendant] (as per order of Hon. Krauss dated 2/23/07)".

The entire Report, dated January 3, 2008 states: This was referred to this J.H.O. to Hear and Report. He required a traverse and Plaintiff was given many opportunities to proceed and produce process server via an audiovisual hearing with Bangladesh to be arranged through the Matrimonial Parts Clerk. Plaintiff has failed to go forward. There was a final marking against her. Court recommends dismissal for failure to prosecute. Respectfully referred to J. Adams (successor to J. Krauss). Attys instructed to move to confirm or object. Secure dates from J. Adams part clerk. Provide minutes and move within 15 days.

The Husband now moves , pursuant to CPLR 4403 to confirm the report of the J.H.O. Husband argues that the Wife was given many opportunities to proceed and failed to so do - therefore the J.H.O was correct to recommend dismissal. He argues that there was no error on the part of the J.H.O. and moreover, the Wife failed to make her own motion to reject the report.

The Wife, in opposition to the confirmation of the Report, points out that this Court is not bound by the Report and that the Court may reject the Report if it is deemed unsatisfactory. She argues that this Court should reject the Report in that the J.H.O. failed to address the issues specifically referred to him, that the J.H.O. erred in not requiring the Husband to bear the burden of proof on his contention and not requiring him to appear and that it was an error of law to recommend dismissal on the Wife's failure to produce the process server. Additionally Wife argues that the J.H.O. made inconsistent rulings on the issue of burden of proof and non-appearance of the Husband. She asks that the Report be rejected and a new hearing be ordered before the J.H.O. however she did not cross-move to reject the report.

The Court acknowledges that the determination of a referee appointed to hear and report is entitled to great weight. This is particularly true where matters of credibility are at issue since the referee, as the trier of fact, has had the opportunity to see and hear the witnesses and to observe them on the stand. Slater v Links at North Hill, [*3]262 AD2d 299, 691 NYS2d 101 (2nd Sept. 1999); Frater v. Levine, 229 AD2d 564, 646 NYS2d 46 (2nd Dept. 1996). The findings of such referee, or judicial hearing officer, will not be disturbed if supported by the evidence in the record. Kaplan v. Einy, 209 A.D. 2d 248, 618 NYS2d 777 (2nd Dept., 1994).

The Court has had an opportunity to review the Report, the transcript and the prior proceedings had in this case. The Court has considered the Wife's contention that the J.H.O. has failed to address the specific issue as set forth in the referral order and finds that this argument has merit. The referral order specifically asks the J.H.O. to address the issue of the concession of service and the J.H.O.'s report makes no mention of this point.

The Wife's also correctly points out that the J.H.O. ignored a crucial legal issue and made an error of law when the case was dismissed for the Wife's failure to produce the process server. Rule 4531 of the Civil Practice Laws and Rules states: An affidavit by a person who served, posted or affixed a notice, showing such service, posting or affixing is prima facie evidence of the service, posting or affixing if the affiant is dead, mentally ill or cannot be compelled with due diligence to attend the trial. See Rox Riv 83 Partners v. Ettinger, 276 AD2d 782, 715 NYS2d 424 (2nd Dept., 2000)

The Court notes that the Husband, by his current counsel, participated in a contempt hearing before Special Referee Charmaine Henderson on August 18, 2006 without once raising the issue of jurisdiction or exercising counsel's option to "stand mute"

The Court finds that the Report of the J.H.O., fails to meet the standard for confirmation without a hearing and complete record, with due regard of the legal issues raised herein.

Based on the record and the law the Court finds that the Husband's motion is denied and this matter is referred to Honorable Jeffrey S. Sunshine for assignment to a Judicial Hearing Officer.

This is the decision and order of the Court.

Counsel for Wife shall serve a copy of the within Decision, upon counsel for Husband, with notice of entry, within ten (10) days of entry.

ENTER,

Rachel A. Adams

Justice by Designation