The Referee submitted a statement averring that he had spent in excess of 20 hours on the matter, and requested compensation of $3,000. However, since the record does not contain any agreement concerning the Referee's compensation which was made prior to the Referee's performance of his duties, the Referee's fee must be limited to the statutory per diem fee of $50 ( see, CPLR 8003 [a]; Majewski v. Majewski, 221 A.D.2d 420; Neuman v. Syosset Hosp. Anesthesia Group, 112 A.D.2d 1029). The appellant's remaining contentions are without merit.
The Plaintiff argues that the Referee cannot receive an enhanced fee because it was not authorized in the Order of Reference, citing to CPLR 8003 and Matter of Charles F., 242 AD2d 297, 660 N.Y.S.2d 594 [2nd Dept.1997]. The Court therein held: "...since the record does not contain any agreement concerning the Referee's compensation which was made prior to the Referee's performance of his duties, the Referee's fee must be limited to the statutory per diem fee of $50 (see, CPLR 8003 [a]; Majewski v Majewski, 221 AD2d 420; Neuman v Syosset Hosp. Anesthesia Group, 112 AD2d 1029)." (Id. at 298).
An appropriate referee's fee will be determined at the time of the confirmation of the referee's report upon application of the referee, based upon, inter alia, a reasonable hourly fee and the time expended as set forth in an affirmation of services (see Majewski v Majewski, 221 AD2d 420 [1995]).
Accordingly, the defendant's motion is granted. Settle Order containing a provision for the appointment of a Referee to ascertain the interests of the parties in the subject property (RPAPL 911), report whether the property is so circumstanced that a partition cannot be made without great prejudice to the owners (RPAPL 901), and, should the Referee determine that a sale is necessary, ascertain the existence of any creditor not joined as a party who may have a lien against an undivided share of any party (RPAPL 913); and that the referee's fee, to be shared equally by the parties, will be determined at the time of the confirmation of the referee's report based upon, inter alia, a reasonable hourly fee and an affirmation of services rendered (see Majewski v. Majewski, 221 AD2d 420).