[*1]
Serraro v Staropoli
2011 NY Slip Op 51260(U) [32 Misc 3d 1211(A)]
Decided on July 5, 2011
Supreme Court, Westchester County
Lefkowitz, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 5, 2011
Supreme Court, Westchester County


David Serraro and ELIZABETH SERRARO, Plaintiffs,

against

Nicholas Staropoli and MARTHA VALENCIA, Defendants.




3241/07



Robert I. Grunber, Esq.

Attorney for Plaintiffs

295 Madison Avenue, Ste. 700

New York, NY 10017

D'Andrea & Goldstein, Esqs.

Attorneys for Defendants

700-720 White Plains Road

Scarsdale, NY 10583

Joan B. Lefkowitz, J.



Upon the foregoing papers it is ORDERED that the motion is denied. [*2]

This Court by order dated November 22, 2010, directed that a traverse hearing be held to determine if defendants were properly served with process. The matter was referred to a Judicial Hearing Officer ("JHO") who took testimony and rendered his decision on the record on March 15, 2010. The JHO determined that jurisdiction was acquired over both defendants. In doing so, the JHO referred to CPLR 308(2) as the predicate statute (Transcript p. 2). However, in the order signed by the JHO sustaining jurisdiction, dated April 15, 2011, reference is made to CPLR 308(4).

Defendants contend that the JHO was confused when he made his decision on the record and the finding of jurisdiction per CPLR 308(4) in the order is not sustainable as a matter of law. Plaintiffs argue that the JHO correctly applied the law to the facts and, further, that this Court may not entertain the motion.

Most JHO positions, including the subject JHO, were terminated as of April 1, 2011 because of budgetary constraints. No party contends that the JHO did not have the power to execute the April 15, 2011 order but, as noted, plaintiffs contend that that order is not reviewable here.

Judicial Hearing Officers have the same powers as the Court. CPLR 4301. However, as I said in Fromson v. Fromson, Supreme Court, Rockland County, Index No. 7838/87, decided September 21, 1992:

"Judicial Hearing Officers' powers are similar to those of Supreme Court Justices and this Court may not sit in de novo review of their orders and judgments. Harris v. Harris, 140 Misc 2d 275 (Supreme Ct. Nassau 1988); Colonder v. Colonder, 138 Misc 2d 66 (Supreme Ct. Nassau 1985), aff'd, 119 AD2d 809 (2d Dep't 1986); Buxbaum v. Buxbaum, 118 Misc 2d 348 (Supreme Ct. Kings 1983); Diatomite Corp. v. Noonan, NYLJ 7/21/92, p. 22, col. 4 (Civil Ct. New York); 8a Carmody-Wait 2d, References & Trial By Referee, §61:59."


The remedy for an aggrieved party is to appeal from the JHO's order. Diatomite Corp. v. Noonan, supra.

Insofar as this Court's jurisdiction is concerned, the Court concludes that CPLR 9002 applies, as the JHO's office has expired and, therefore, a Supreme Court Justice may act in his stead.[FN1] However, that conclusion does not negate the above mentioned principles barring review of a JHO's order. [*3]

Submit order on notice.

DATED: July 5, 2011

White Plains, NY

ENTERED:

Joan B. Lefkowitz, J.S.C.

Footnotes


Footnote 1:Siegel, New York Practice (5th ed.), p. 449 and Prudential Lines, Inc. v. Firemen's Ins. Co., 109 Misc 2d 281 (Supreme Ct. NY 1981) cited by the parties is inapplicable as the motion affecting a prior order was referred back to the original judge who was still sitting as a judge, albeit in a different court.