The court shall decide any issue not required to be tried by a jury unless it is referred to a referee to determine pursuant to section 4317.
§ 4211.Issues to be decided by the court
Article 42. Trial by the Court · Not amended since adoption on record · Last verified July 21, 2026
In one sentenceSection 4211 states the default rule for a bench trial: the court decides every issue that is not required to be tried by a jury, unless the case has instead been referred to a referee to determine under section 4317.
Full Text of CPLR 4211
Plain-English Summary
Section 4211 sounds close to too obvious to need stating, and the drafters considered leaving it out for that reason: the court decides any issue that does not have to go to a jury. It kept its place in the CPLR to make sure no one mistakes silence on the point for a change in the law. Whether a jury right never existed for a particular issue, or existed and was waived, the outcome is the same, the judge decides it, unless section 4317 sends the matter to a referee to determine instead.
The rule uses the word 'decide' rather than 'tried' on purpose, a choice that reaches beyond an ordinary bench trial to include the advisory-jury and referee-to-report procedure described in rule 4212. That broader wording keeps section 4211 as the anchor point for every non-jury issue in the case, whichever of those procedures the court ultimately uses to resolve it.
Frequently Asked Questions
Who decides issues in my case that aren't going to a jury in New York?
The court does, under section 4211, unless the issue has instead been referred to a referee to determine under section 4317.
Does this rule apply whether I never had a jury right or I waived it?
Yes, either way, the outcome is the same: the court decides the issue unless a reference under section 4317 applies.
Why does this section exist if the rule seems self-evident?
The drafters kept it in the CPLR specifically to prevent anyone from inferring that the law on this point had changed.
Does 'decide' under this section include a bench trial that uses an advisory jury?
Yes, the word 'decide' was chosen instead of 'tried' precisely to reach the advisory-jury and referee-to-report procedure set out in rule 4212.
Can a case be referred to a referee instead of decided by the judge?
Yes, section 4317 allows certain issues to be referred to a referee to determine, which section 4211 treats as the one exception to the court deciding the issue itself.
Advisory Committee Notes
This rule integrates CPA § 427, which required trial by the court where the parties were not entitled to trial by jury, and § 428, which required trial by the court where the right to jury trial had been waived. Both sections permitted a reference but only § 427 permitted issues to be submitted to an advisory jury. See also CPA § 430. Under CPLR rule 4212, however, such a jury may be utilized in either type of case. See notes to rule 4212. The committee considered omitting this rule as unnecessary. The law is clear that determination by the court is required unless jury trial or a reference to determine is obtained pursuant to statute or rule. Vincent v Cooperman, 283 App Div 812, 128 NYS2d 634 (2d Dep’t 1954); S. Klein, Inc. v New Deal Bldg. Corp. 171 Misc 1058, 14 NYS2d 323 (Sup Ct 1939). It was decided to include the rule to preclude an inference that the law was changed. The word “decide” has been used instead of “tried” to indicate that a trial pursuant to rule 4212 is included.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
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