Upon being notified that a referee declines or fails to serve, or in the case of the death, resignation or removal of a referee, or if a new trial is granted after a reference, on motion of any party or on its own initiative, the court may designate a successor referee, unless a stipulation upon which the order of reference is based expressly provides otherwise.
R 4314.Successor referee.
Article 43. Trial by a Referee · Last amended 1963 · Last verified July 21, 2026
In one sentenceWhen a referee declines, fails to act, dies, resigns, or is removed, or a new trial is ordered after a reference, the court can appoint a new referee to finish the job unless the parties' stipulation says otherwise.
Full Text of CPLR 4314
Plain-English Summary
Referees do not always finish what they start. CPLR 4314 lets the court step in and name a replacement whenever the original referee cannot or will not complete the assignment, because he declined it, failed to act, died, resigned, or was removed, and also when a new trial is granted after a reference has already run its course.
The court can act on a party's motion or on its own, but that power has a boundary: where the parties' own stipulation set up the reference and specifies otherwise, the court has to honor what they agreed to. In practice, that means a stipulation naming a particular referee, with no fallback, can leave the parties without a substitute if that referee cannot serve.
Frequently Asked Questions
What happens if a referee dies or resigns before finishing the case?
Under CPLR 4314, the court may appoint a successor referee on a party's motion or on its own initiative.
Does a party have to ask for a successor referee, or can the court act alone?
Either way. CPLR 4314 lets the court designate a successor on motion of any party or on its own initiative.
If a new trial is granted after a reference, does the same referee hear it again?
Not necessarily. CPLR 4314 lets the court appoint a successor referee for the new trial, though nothing requires it if neither the court nor the parties object to the original referee.
Can the parties block the appointment of a successor referee?
Yes, if their stipulation creating the reference expressly says a successor should not be named.
Is appointing a successor referee always mandatory when the original referee cannot serve?
No. CPLR 4314 always leaves the appointment of a successor referee to the court's discretion, using the word may rather than must. The only fixed limit runs the other way: where the order of reference is based on a stipulation of the parties under CPLR 4317(a) that expressly says no successor should be named, the court cannot override that stipulation.
Advisory Committee Notes
This rule is based on the last sentence of CPA § 81. It has been modified to apply solely to referees and to include appointment of a new referee where a new trial is granted after a reference. The first sentence of § 81, which gave the court power to remove officers appointed by the court, is covered by an amendment to the Judiciary Law.
The general rule upon reversal of a decision by a referee is that a new trial is held before the same referee, unless the order granting a new trial provides otherwise or the parties move for a change of referee. Saranac Land & Timber Co. v Roberts, 224 NY 377, 121 NE 99 (1918). This rule eliminates exceptions to the general rule which were contained in the last sentences of CPA §§ 464 and 465. The last sentence of § 464 required that another referee be appointed where a referee named by a stipulation refused to serve or a new trial was granted after a decision by a referee so named, unless the stipulation expressly required otherwise. The last sentence of § 465, under which the court must have designated the referee, also required that a new referee be appointed, upon the application of either party, where the original referee refused to serve or a new trial was granted. There seems no reason to require the appointment of a new referee to preside over a new trial if neither the court nor the parties object to having the original referee. Moreover, the former requirement in § 464 only applied to a referee named by the parties and not to one named by the court pursuant to that section; there seems no reason for the distinction.
Where a referee who has been named pursuant to CPLR § 4317(a) refuses to serve, a successor referee must be named since that section requires a reference where the parties consent. This accords with former law. Where a stipulation conditions consent to the reference on the service of a particular referee, of course, no successor can be named by the court.
Where a referee appointed by the court pursuant to § 4317(b) refuses to serve, however, the appointment of a successor referee is permissive; thus, under this rule, the court may then proceed without a reference. This represents a change in former law, where, under § 465, the court, having once directed a reference, must have appointed a successor referee.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963.
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
Also known as: successor referee New Yorkreferee resigns or dies CPLRnew trial after reference New Yorkreplacing a referee