        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

137
CA 11-01710
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


JUDY T. READER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ROBERT W. READER, DEFENDANT-APPELLANT.


THE BROCKLEBANK FIRM, CANANDAIGUA (DEREK G. BROCKLEBANK OF COUNSEL),
FOR DEFENDANT-APPELLANT.

MERKEL AND MERKEL, ROCHESTER (DAVID A. MERKEL OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Ontario County
(Philip A. Litteer, R.), entered November 20, 2010 in a divorce
action. The judgment, inter alia, equitably distributed the assets of
the parties.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Ontario County,
for further proceedings in accordance with the following Memorandum:
As limited by his brief, defendant appeals from those parts of a
judgment of divorce determining that certain assets constituted
marital property subject to equitable distribution and valuing those
assets. Defendant contends, inter alia, that the Referee erred in
determining that a purported bank account at Canandaigua National Bank
(hereafter, bank account) constituted marital property subject to
equitable distribution. The Referee concluded that the bank account
was valued at $194,000, which was to be distributed equally between
the parties. In making that determination, the Referee relied upon
certain exhibits that were admitted in evidence at trial upon
stipulation of the parties, but those exhibits were not included in
the record on appeal. In addition, the Referee noted that there was a
dispute regarding that bank account, but he failed to indicate the
basis upon which he resolved that dispute. In the absence of the
evidence upon which the Referee relied in making his determination and
the reasoning used to resolve the dispute regarding the bank account,
we are unable to review defendant’s contention. We therefore hold the
case, reserve decision and remit the matter to Supreme Court for a
determination with respect to the content of the missing exhibits,
after a reconstruction hearing if necessary (see generally Matter of
Garner v Garner, 88 AD3d 708; Matter of Wendy L.K. v Jeffrey S., 278
AD2d 785), and for the Referee to state the reasoning for his
determination that defendant possessed the bank account and for his
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                                             CA 11-01710

valuation thereof.




Entered:   January 31, 2012         Frances E. Cafarell
                                    Clerk of the Court
