Opinion
2002-11247, 2003-03293.
Decided December 8, 2003.
In an action, inter alia, to recover damages for fraud, the plaintiff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Queens County (Leviss, J.H.O), dated October 9, 2002, as, in effect, denied that branch of her motion which was to adjourn the trial for six months and, in effect, granted the cross motion of the defendant James C. Jangarathis to dismiss the complaint with prejudice, and (2) from an order of the same court (LeVine, J.), dated March 4, 2003, which denied her motion to vacate the order dated October 9, 2002.
Van Der Waag and Gray, (Robert F. Van Der Waag and Catherine M. Gray of counsel), for appellant.
DelBello Donnellan Weingarten Tartaglia Wise Wiederkehr, LLP, (William E. Dumke and Lee S. Wiederkehr of counsel), for respondent.
Before: LEO F. McGINITY, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order dated October 9, 2002, is reversed insofar as appealed from, on the law, the complaint is reinstated, and the matter is remitted to the Supreme Court, Queens County, for a determination by a Justice of that court of the merits of the motion and cross motion; and it is further,
ORDERED that the appeal from the order dated March 4, 2003, is dismissed as academic, in light of our determination on the appeal from the order dated October 9, 2002; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The reference to Judicial Hearing Officer Leviss (hereinafter the JHO) was to hear and report, not hear and determine. Accordingly, the JHO had no authority to issue an order determining the motion and cross motion ( see CPLR 4317, 4320).
SMITH, J.P., KRAUSMAN, McGINITY and RIVERA, JJ., concur.