Litman v. Arashi

Order, Supreme Court, New York County (William J. Davis, J.), entered October 10, 1991, which referred the action, pursuant to stipulation, to a Special Referee to hear and determine a dispute over legal fees, unanimously reversed, on the law and the facts, and the order vacated, without costs.

This is an action by a law firm to recover a balance of legal fees from defendant-appellant and his non-appealing co-defendant wife, for representing the former in a criminal proceeding. Appellant is presently incarcerated in State prison. The order referring the issue to a Referee to hear and determine recites that the reference is pursuant to stipulation. Although plaintiff and the co-defendant wife have apparently so stipulated, appellant has not, and indeed vigorously objects thereto. Since this order, purportedly issued under CPLR 4317 (a), lacks the essential jurisdictional predicate of appellant’s consent, it must be vacated (McCormack v McCormack, 174 AD2d 612; Haibi v Haibi, 171 AD2d 842; Sternberg v Sternberg, 88 AD2d 950). Concur — Sullivan, J. P., Carro, Wallach and Kupferman, JJ.