| Llorente v City of New York |
| 2009 NY Slip Op 02566 [60 AD3d 1003] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Alexis Llorente et al., Appellants, v City of New York,Respondents. |
—[*1] Barry, McTiernan & Moore, New York, N.Y. (Laurel A. Wedinger of counsel), forrespondents City of New York and Administration for Children's Services. Wilson Elser Moskowitz Edelman & Dicker, LLP, Stamford, Conn. (Anthony B. Carleto andBrian S. Frank of counsel), for respondent Little Flower Children's Services.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1)stated portions of an order of the Supreme Court, Queens County (Kerrigan, J.), dated October26, 2007, which, inter alia, denied, as academic, that branch of their cross motion which was todirect the defendants City of New York, Administration for Children's Services, and LittleFlower Children's Services to produce requested documents for in camera review, and (2) anorder of the same court dated May 9, 2008, which, among other things, denied that branch oftheir motion which was to vacate an order of the same court dated December 20, 2007, suasponte appointing a court attorney referee pursuant to CPLR 3104 (a) to complete an in camerareview of documents and to hear and report on these defendants' motions for protective orders,and denied that branch of their motion which was, in effect, for leave to reargue their prior crossmotion.
Ordered that the order dated October 26, 2007, is affirmed insofar as appealed from; and it isfurther,
Ordered that the appeal from so much of the order dated May 9, 2008, as denied that [*2]branch of the plaintiffs' motion which was, in effect, for leave toreargue their prior cross motion is dismissed, as no appeal lies from an order denyingreargument; and it is further,
Ordered that the order dated May 9, 2008, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
Although a court lacks the authority to sua sponte appoint a private attorney to serve as areferee to oversee discovery, and to be compensated by the parties without their consent (seeSurgical Design Corp. v Correa, 309 AD2d 800 [2003]; Warycha v County ofWestchester, 273 AD2d 434 [2000]), here the Supreme Court did not refer the in camerareview of over 4,000 documents to a named private attorney, but rather to a court attorneyreferee pursuant to CPLR 3104 (a). Therefore, consent of the parties was not required.
Contrary to the plaintiffs' contention, the order dated December 20, 2007, did not direct thecourt attorney referee to "hear and determine" the motions of the defendants City of New York,Administration for Children's Services, and Little Flower Children's Services (hereinafter thedefendants) for protective orders. The order expressly limited the court attorney referee to "hearand report on whether or to what extent [the] defendants' motions for protective ordersshould be granted" (emphasis added) (see CPLR 4001; compare CPLR 4212,4317). Accordingly, the Supreme Court's appointment of a court attorney referee to overseediscovery was within its authority and was not an improvident exercise of discretion.
The plaintiffs' remaining contentions are without merit. Rivera, J.P., Ritter, Covello andAngiolillo, JJ., concur.