Opinion
CA 01-02421
October 1, 2002.
Appeal from an order of Supreme Court, Erie County (Makowski, J.), entered August 28, 2001, which granted the motions of respondents and a nonparty witness and confirmed the report of the Judicial Hearing Officer.
PHILLIPS, LYTLE, HITCHCOCK, BLAINE HUBER LLP, BUFFALO (ALAN J. BOZER OF COUNSEL), FOR PETITIONERS-APPELLANTS, PLAINTIFFS-APPELLANTS AND DEFENDANTS-APPELLANTS.
DUKE, HOLZMAN, YAEGER PHOTIADIS LLP, BUFFALO (CHARLES C. RITTER, JR., OF COUNSEL), FOR RESPONDENTS-RESPONDENTS, DEFENDANT-RESPONDENT AND PLAINTIFF-RESPONDENT.
CONNORS VILARDO, LLP, BUFFALO (MARK R. UBA OF COUNSEL), FOR RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Robert E. Roller, Richard T. Wolney and Robert G. Stahl (petitioners) appeal from an order granting the motions of respondents and a nonparty witness and confirming the report of the Judicial Hearing Officer appointed to hear and report on questions of privilege relating to the nonparty witness. The record does not support petitioners' contention that the Judicial Hearing Officer exceeded the scope of the reference ( see Daly v. Messina, 228 A.D.2d 542, 543). In addition, Supreme Court properly rejected petitioners' objection to the report arising from the failure of the Judicial Hearing Officer to conduct an evidentiary hearing. Petitioners acquiesced in the procedure adopted by the Judicial Hearing Officer prior to the issuance of his report. "[T]he parties charted their own course of procedure and [petitioners] may not now complain" ( Jacoby, M.D., P.C. v. Loper Assoc., 249 A.D.2d 277, 278). Finally, the findings of the Judicial Hearing Officer are supported by the record and thus the court properly confirmed his report ( see Namer v. 152-54-56 W. 15th St. Realty Corp., 108 A.D.2d 705).