Matter of Peter J.File 4482/97 Lance

Matter of Lance 2006 NY Slip Op 01238 [26 AD3d 244] February 16, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 19, 2006

In the Matter of the Estate of Peter J. Lance, Deceased. Herbert Lance, Appellant; Thelma Buggs, Respondent.

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Order, Surrogate's Court, New York County (Renee R. Roth, S.), entered on or about August 15, 2005, which denied confirmation of the referee's report and remanded the matter for a new hearing, unanimously affirmed, without costs.

Respondent was the longtime secretary of the intestate decedent. The record does not indicate that the referee or counsel for petitioner-administrator of the estate ever notified her of the scheduled trial date in writing, and neither she nor her counsel appeared. The court's rejection of the judicial hearing officer's report at inquest was warranted on this ground alone. In addition, there were no findings of fact in the report (see SCPA 506 [1]) on which to base the conclusion that respondent had misappropriated $3,174,951.74 worth of estate assets. A referee's report is without legal effect until it is adopted by the court, which retains the authority to confirm or reject that report in whole or in part, make new findings with or without taking additional testimony, or order a new reference (SCPA 506 [4]). It was thus within the court's discretion to reject this report and remand the matter for a new hearing. Concur—Tom, J.P., Friedman, Gonzalez, Sweeny and McGuire, JJ.